IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Review No.98 of 2007 ------ 1 (i) Sita Devi wife of Late Dwarika Prasad. 1(ii) Ajay Kumar S/o Late Dwarika Prasad 2. M/s Bishwakarma cold storage (Private Limited) Sohsarai, P.S. P.O.-Sahsarai, District-Nalanda, Managing Director of Dwarika Prasad, S/o Late Tulshi Sah, At + P.O. & P.S. Sohsarai, District- Nalanda. -- Appellants- Petitioners. Versus 1. Indradeo Lal son of Maksudan Ram, resident of Mohalla-Sohsarai, P.O. & P.S. Sohsarai, District- Nalanda. – Auction Purchaser— Respondent- Opposite Party. 2. State Bank of India, Bazar Branch, Bihar Sharif through Manager, Biharsharif, P.O. & P.S. Biharsharif, District Nalanda. -- Plaintiff-Decree-Holder-Respondent. 3. Om Prakash Gupta. 4. Ashok Kumar Gupta Sons of Late Ram Sah, resident of Mohalla Sohsarai, P.O. & P.S. Sohsarai, District-Nalanda.- Defendants-Judgment-Debtors- Respondents. ----------- For the petitioners : Mr. Sashi Shekhar Dwivedi, Senior Advocate Mr. R.S.Dwivedi, Advocate. For opposite party no.1 : M/s.V.Nath, Mrigendra Kumar & WaliurRahman, Advocates For opposite party no.2 : Mr. Ram Kumar Sharma, Senior Advocate Mr. Hansraj, Advocate. ------ O R D E R 21. 09.02.2009 This petition has been filed on behalf of the appellants- petitioners for review of the judgment of a Bench of this court dated 17.04.2007 by which Miscellaneous Appeal No.574 of 2000 was dismissed on merits at the stage of final hearing only after hearing the learned counsel for the respondents as learned counsel for the appellants were absent. 2. The said appeal was filed by the petitioners on 20.10.2000 under the provision of Order XLIII Rule 1 (j) of the - 2 - Code of Civil Procedure (hereinafter referred to as ‘the Code’ for the sake of brevity) against order dated 21.09.2000 by which the learned Subordinate Judge I, Nalanda dismissed Miscellaneous Case No.25 of 1990 (13/1994) filed by the petitioners for setting aside auction sale of the said properties and also for stay of further proceeding relating to delivery of possession in Execution Case No.11 of 1989 arising out of Title Suit No.117 of 1981 which was filed by opposite party Ist Set and was decreed against the petitioners, who were defendants in the suit. 3. The said miscellaneous appeal was admitted on 18.02.2002 by a Bench of this Court while hearing under Order XLI Rule 11 of the Code, whereafter the procedure of Rule 12 etc of the said Order was also complied and both the plaintiffs-respondents appeared in the appeal and the case was listed for final hearing on 17.04.2007. However, on 17.04.2007, no one appeared on behalf of the appellants, whereas learned counsel for the said respondents were present. Hence the Hon’ble court before which the appeal was placed, heard learned counsel for the said respondents and dismissed the appeal on merits by a well discussed and reasoned judgment dated 17.04.2007. 4. The appellants-petitioners have filed this civil review petition challenging the said judgment dated 17.04.2007 passed in the miscellaneous appeal on the ground that without hearing the appellants’ counsel at the time of hearing, the appeal cannot be dismissed on merits and that the only recourse for the court in case of absence of appellants or their counsel is either to adjourn the - 3 - hearing of the appeal or to dismiss the appeal in default under the provision of Order XLI Rule 17 of the Code. 5. On the other hand, learned counsel for respondent- opposite party no.1 submitted that Rule 17 of Order XLI is only applicable to the dismissal of an appeal under Order XLI Rule 11 of the Code and not with respect to dismissal of an appeal under Rule 30. He further submitted that Section 107 of the Code gives wide powers to the appellate court and no such restriction is imposed stopping any court from deciding an appeal on merit in case of absence of the appellant when the case is called out for final hearing. In support of his contentions, learned counsel for the opposite parties placed reliance on a decision of Rajasthan High Court in case of Dargah Committee, Ajmer V. Smt. Hamida Banu and another, reported in AIR 1988 Rajasthan 16. 6. Learned counsel for respondent-opposite party no.2, namely the State Bank of India, submitted that only on technicality, a well considered and reasoned order of this court passed in the miscellaneous appeal should not be reversed, especially when learned counsel for the appellants-petitioners have failed to show any other illegality on merits in the order sought to be reviewed. In this connection, he relied upon a decision of the Hon’ble Apex Court in case of Anjula Verma, V. Sudhir Verma, reported in AIR 2002 Supreme court 1447. He further submitted that the impugned order may be treated as an order of dismissal for default as per Rule 17, amenable to Rule 19 of Order XLI of the Code and hence there is no question of its review. - 4 - 7. After hearing the parties and considering the respective points raised by them, this court finds necessary to consider the concerned provisions of law, which are as follows:- (a) Rule 16 of Order XLI of the Code provides that when an appeal is fixed for hearing, firstly the appellant shall be heard in support of the appeal and if no merit is found in his case, the appeal has to be dismissed at once and if some merit in his argument is found only then the respondent shall be heard against the appeal and in such case, the appellant shall also be entitled to reply. (b) Rule 30 of Order XLI of the Code provides that after hearing the parties or their pleaders, the appellate court shall pronounce judgment in open court either at once or on some future day of which notice shall be given to the parties or their pleaders. This provision lays down that the judgment shall be pronounced only after hearing the parties or their pleaders, but there is no mention about the procedure in a case where any of the parties or their pleaders remained absent at the time of hearing. (c) Rule 17 (2) of Order XLI of the Code provides that where appellant appears and the respondent does not appear, the appeal shall be heard ex parte, whereas Rule 17(1) provides that where on the day of hearing the appellant does not appear when the appeal is - 5 - called on for hearing, the court may make an order that the appeal be dismissed. An Explanation has been added to Sub-Rule (1) of Rule 17 by the Amending Act of 1976 providing that nothing in the sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. Thus, it is quite apparent that as per the aforesaid provision if the respondent does not appear the appeal shall be heard ex parte, but if the appellant does not appear at the time of hearing, the appeal has to be dismissed on that ground alone. (d) Rule 19 of Order XLI of the Code provides that when an appeal is dismissed for default due to the absence of the appellant or his counsel either at the stage of admission under Rule 11 (2) or at the stage hearing under Rule 17 (1), the appellant may apply to the appellate court for the re-admission of the appeal and the court shall re-admit the appeal after it finds that sufficient reason has been shown for non- appearance on such terms as to costs or otherwise as it thinks fit. 8. Considering the aforesaid specific provisions of law as well as the scheme of the Code with regard to procedure to be adopted by an appellate court while hearing an appeal, it becomes quite apparent that Rules under Order XLI up to Rule 11 deal with procedure until the admission stage and the Rules thereafter deal - 6 - with the procedure to be adopted by courts after the admission stage up till the stage of hearing of the appeal under Rule 30. Rule 30 read with Rules 16 and 17 (with Explanation) of Order XLI of the Code specifically show that the judgment has to be pronounced after hearing the parties or their respective pleaders and while doing so, first of all, the appellant or his pleader shall be heard in support of the appeal and if no merit is found in his contention, then the appeal should be dismissed and only if any merit is found by the court in the argument of the appellant, then the respondent or his pleader should be heard and in such a case, the appellant shall be entitled to reply. 9. It is also clear from the said provisions that if appellant appears and respondent does not appear, the appeal has to be heard ex parte, but where the appellant or his pleader does not appear, then there will be no question of hearing of the appellant or his pleader and when the appellant or his pleader is not heard, then there will be no occasion for hearing the respondent or his pleader and, hence, the court has no alternative but to make an order that the appeal is dismissed for default due to non-appearance of the appellant or his pleader. 10. The next step in the scheme of the said Order is that if an appeal is dismissed at the time of hearing for default of the appellant under the provision of Rule 17, the appellant has got a remedy to apply under Rule 19 before the appellate court for re- admission of the appeal and if he is able to prove that he was prevented by any sufficient cause from arguing the appeal and - 7 - appearing in court when the appeal was called for hearing, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. In the said circumstances, it is quite apparent that there is no scope for digression from the specific provisions of law and if the appellant or his pleader does not argue and does not appear when the appeal is called for final hearing, the court hearing the appeal cannot legally dismiss the appeal on merit, rather it will have only two options left, namely either he can adjourn the case fixing another date of hearing or he can dismiss the appeal for default under Rule 17, whereafter the appellant shall have a remedy under Rule 19. 11. This view also finds support from a plethora of decisions of this court as well as of the Hon’ble Apex Court, including some enumerated as follows:- (i) AIR 1934 Patna (DB) 341 (page-342) (Makhu Sahu and another Vs. Kamta Prasad Sahu and others). (ii) AIR 1961 Patna 299 (Para-3) (Kawleshwar Singh and another V. Raghubir Singh and others). (iii) AIR 1973 Patna 166 (DB) (Para-8) (Deo Dutta Singh and others V. Ram Naresh Singh and others). (iv) AIR 1981 Supreme Court 1400 (Para-3) (Rafiq and another Vs. Munshilal and another). (v) (1996) 6 SCC 62 (Para-2) (Abdur Rahman and others Vs. Athifa Begum and others). (vi) 2008 AIR SCW 7630 (Para- 13 & 35) (Secretary, Deptt. of Horticulture, Chandigarh & Anr Vs. Raghu Raj). 12. So far the reliance of the respondents on Section 107 of the Code is concerned, it is with regard to general provisions - 8 - regarding powers of the Court relating to appeals and there is nothing in the said provision to circumvent the various rules under Order XLI or the Scheme provided therein. Learned counsel for the respondents have also relied upon a decision in the case of Dargah Committee, Ajmer (Supra), but the said case law is not applicable in the facts and circumstances of this case as it concerned dismissal of cross-appeals in the absence of the advocate for the appellant only in one of the appeals. Hence, this court does not find any merit in the contention of learned counsel for the respondent. 13. Considering the aforesaid facts and circumstances as well as the provisions and settled principles of law, it is quite apparent that by the order sought to be reviewed, the court has transgressed the limit provided under the Code as it had no jurisdiction as per the specific provisions of law to dismiss the appeal on merit when the appellants’ counsel did not make any argument and was absent at the time of hearing of the appeal. 14. Thus, there being an error apparent on the face of the order sought to be reviewed, this civil review petition is allowed and the impugned order dated 17.04.2007 is reviewed with the effect that it would be deemed to be an order of dismissal of M.A.No.574 of 2000 only in default under Rule 17 and not on merits and the appellants-petitioners would have a remedy under Rule 19 of Order XLI of the Code against the said order by way of filing a separate petition. Sunil (S. N. Hussain, J.)