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[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.4656/2014 (arising out of S.L.P.(Civil) No.5875/2007)

Harbans Pershad Jaiswal (D) By Lrs.     …………..Appellants

Vs.

Urmila Devi Jaiswal (D) By Lrs.                            …………..Respondents

WITH

C.A. No.4657/2014 @ SLP(Civil) No.5874/2007 C.A.No.4658/2014 @ SLP(Civil) No.18141/2009 C.A.No.4659/2014 @ SLP(Civil) No.18142/2009

J U D G M E N T

A.K.SIKRI,J.

1. Leave granted.

2. In all these appeals identical question of law is raised, which  

has  arisen  for  consideration  in  the  same  background  facts  in  

these cases, which are between the same parties.  There is thus,  

a commonality of parties, the dispute as well as question of law in

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all  these  cases  and  for  this  reason  these  appeals  were  heard  

analogously and are being disposed of by this common judgment.

3. The factual details giving rise to the filing of these appeals  

do not need a large canvass, and our purpose would be served in  

drawing the picture with the following relevant facts:

4. One Late Shiv Pershad Jaiswal was the owner and possessor  

of  House  No.11-2-378,  Habeed  Nagar,  Hyderabad  as  well  as  

House No.4-114 to 117 with appurtenant land admeasuring about  

Ac.2.05  guntas  at  Madchal,  R.R.  District.  After  his  death,  the  

respondent  herein  (daughter  of  Shiv  Pershad  Jaiswal)  filed  the  

Suit,  being  O.S.1287  of  1985,  in  City  Civil  Court,  Hyderabad  

claiming1/3rd share  in  the  aforesaid  properties  which  were  

described in Schedule A and B to the plaint. In the said Suit, she  

impleaded her brother and mother as the defendants. During the  

pendency  of  the  Suit,  the  mother  died  which  led  to  the  

amendment in the Suit filed by the respondent claiming ½ share  

in  the  aforesaid  properties.  Additional  relief  of  rendition  of  

accounts was also prayed for, as the brother (appellant No.1) was  

collecting the rent from the tenants from certain portion of the

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Suit  properties.  By  way  of  amendment,  appellant  No.2  herein  

(wife of appellant No.1) was also impleaded in whose favour her  

mother  had  bequeathed  property  by  executing  a  Will  dated  

6.7.1983.   The Suit  was contested by the defendants  by filing  

written statement. Number of issues and additional issues were  

framed and both the parties led their evidence in support of their  

respective cases.  After hearing the arguments, the learned City  

Civil Court passed the preliminary decree dated  5.8.1993 holding  

that  the respondent  as  well  as appellant  No.1 (herein  brother)  

were entitled to half share each in respect of property at Madchal,  

R.R.  District  (Schedule  A  property).   Suit  qua  Habeeb  Nagar  

(Schedule B property) was dismissed. The Trial Court also directed  

the respondent to proceed against the appellants for rendition of  

accounts  at  the  time  of  passing  of  final  decree  for  the  rent  

realized  by  appellant  No.1  after  the  death  of  their  mother  

respondent  on 25.9.1985.

5. The  respondent  was  not  satisfied  with  the  aforesaid  

preliminary decree vide which she was held not entitled to any  

share  in  the  Schedule  A  property.  She,  accordingly,  filed  the  

appeal against the said portion of the preliminary decree, before

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the High Court of Andhra Pradesh.  Likewise, the appellant also  

filed  appeal  against  other  portion  of  the  preliminary  decree  

whereby the respondent was held entitled to half  share in  the  

Schedule B property. These appeals were listed for final hearing  

on  29.9.2005.  However,  counsel  for  the  appellants  Ms.  Shalini  

Saxena did not appear in the Court on that day. The High Court  

heard the counsel for the respondent on the merits of the appeal  

and rendered judgment dated 29.9.2005 whereby appeal of the  

respondent was allowed and that of the appellants was dismissed.

6. As per the appellants, they came to know about the said ex-

parte judgment and order dated 29.9.2005 sometime in the year  

2006.  Accordingly,  the appellants moved four  applications with  

following description:

(i) C.C.C.A.  M.P.  No.294/2006  for  the  leave  of  the  High  

Court to engage their counsel to represent their case,

(ii) C.C.A.  M.P.  SR  No.4416/2006  with  the  prayer  to  

dispense  with  the  filing  of  the  certified  copies  of  decree  and  

judgment  and  also  typed  copies  of  judgment  and  decree  in  

C.C.C.A. No.4 of 1994 dated 29.9.2005.

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(iii) C.C.C.A.M.P.  (SR)  No.4417  of  2006  praying  the  High  

Court to condone the delay of 158 days in filing the application for  

setting aside the ex-parte decree and judgment dated 29.9.2005  

in C.C.C.A. No.4 of 1994.

(iv) C.C.C.A.M.P.(SR) No.4419 of 2006 for setting aside the  

exparte decree and judgment dated 29.9.2005 in C.C.C.A.No.4 of  

1994.

7. The plea of the appellants was that in the absence of their  

counsel,  appeal filed by them could not have been decided on  

merits and the only course open to the Court was to dismiss the  

appeal in default, as that is the only permissible course of action  

provider in Order XLI Rule 17 of the Code of Civil Procedure in  

such an eventuality. This argument, however, did not impress the  

High Court. A perusal of the order of the High Court would also  

demonstrate  that  the  High  Court  was  not  impressed  with  the  

argument that non-appearance of the counsel for the appellants  

was  bonafide  or  there  was  sufficient  cause  shown  for  the  

counsel’s  absence.   In  fact,  a  perusal  of  docket  proceeding  in  

appeal of the respondents indicated that another Single Judge had

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heard common arguments in both appeals on an earlier occasion  

and even the judgment was reserved.  However, owing to the fact  

that  he  was  subsequently  appointed  as  Chairman,  Andhra  

Pradesh  Administrative  Tribunal  and  could  not  deliver  the  

judgment,  the  appeals  were  directed  to  be  listed  for  hearing  

afresh.  The record was not showing as to who was represented  

appellants at that time and advanced the arguments. Therefore,  

the appellants could not feign absence of their earlier counsel Ms.  

B.Shalini  Saxena.  In  any case,  as  pointed out  above,  the High  

Court found that there was no sufficient cause shown for non-

appearance of Ms. B.Shalini Saxena.

8. It  is,  further,  pointed  out  by  the  High  Court  that  the  

respondent  herein  was  the  appellant  in  one  of  the  appeals  

C.C.A.No.4/94  and the appellants herein were the respondents in  

that appeal. In so far as that appeal filed by respondent herein is  

concerned, same could be heard in the absence of the appellants  

(respondents in that appeal), in view of the provision contained in  

Order 41 Rule 17(2) of the CPC which reads as under:

“Hearing  appeal  ex  parte:  Where  the  appellant  appears  and  the  respondent  does

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not  appear,  the  appeal  shall  be  heard  ex  parte.”

Since another appeal was heard along with this appeal, that  

was  the  reason  for  hearing  both  the  appeals  together.  Giving  

these  reasons,  the  applications  filed  by  the  appellants  were  

dismissed and present appeals are filed challenging the dismissal  

order dated 31st July 2006.

9. As mentioned above, the sole contention of the appellant is  

that  the  appeal  filed  by  the  appellants  could  not  have  been  

dismissed on merits when the appellants remained unrepresented  

and at the most it could be dismissed only in default. In support of  

this contention, Mr. Sanyal, learned senior counsel appearing for  

the appellants referred to explanation appended to Order XLI Rule  

17 of the CPC. Mr. Sanyal also relied upon the judgment of this  

Court in the case of Abdur Rahman & Ors. v. Athifa Begum &  

Ors. (1996) 6 SCC 62.

10. Mr.  Anup  George  Chowdhuri,  learned  senior  counsel  who  

appeared for the respondents argued on the same line which are  

the reasons adopted by the High Court in passing the impugned

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order.  Additionally,  he  sought  to  draw  sustenance  from  the  

judgment in the case of Ajit Kumar Singh & Ors. v. Chiranjibi  

Lal & Ors. (2002) 3 SCC 609.

11. It  is  a  common  case  that  the  appeals  filed  by  both  the  

parties were governed by the procedure contained in Order XLI of  

the CPC.  As per  Rule 12,  in  case the appellate court  does not  

proced to dismiss the appeal in limine under Rule 11, it shall fix a  

day for hearing the appeal. Rule 14 prescribes that notice of the  

day fixed under Rule 12 is  to be given in the appellate court-

house.  Rule  16  gives  the  appellants  a  right  to  begin  the  

arguments at the time of hearing of the appeal. As per Rule 17,  

the  appeal  can  be  dismissed  in  case  of  appellant’s  default  in  

appearance.  Since  the  arguments  hinges  around  this  rule,  we  

reproduce the said rule  hereunder:

“17. Dismissal  of appeal for appellant’s  default –(1)Where on the day fixed, or on any  other  day  to  which  the  hearing  may  be  adjourned, the appellant does not appear when  the appeal is called for hearing, the Court may  make an order that the appeal be dismissed. [Explanation.- Nothing in this sub-rule shall  be  construed as empowering the Court to dismiss  the appeal on the merits.]

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(2)  Hearing appeal  ex parte. –Where  the  appellant appears and the respondent does not  appear, the appeal shall be heard ex parte.”   

12.  Where  the  appeal  is  dismissed  in  default  under  Rule  17,  

remedy  is  provided  to  the  appellant  under  Rule  19  for  re-

admission of the appeal on moving an application and showing  

that he was prevented by any sufficient  cause from appearing  

when the  appeal  was  called  on  for  hearing.  Likewise,  Rule  21  

gives  an  opportunity  to  the  respondent  to  move  similar  

application  for  rehearing  of  the  appeal  by  demonstrating  

sufficient cause for non-appearance, if the appeal was heard in  

his absence and ex-parte decree passed.

13. It is clear from the above that whereas appeal can be heard  

on merits if the respondent does not appear, in case the appellant  

fails to appear it is to be dismissed in default. Explanation makes  

it clear that the court is not empowered to dismiss the appeal on  

the merits of the case.  As different consequences are provided,  

in case the appellant does not appear, in contradistinction to a  

situation where the respondent fails to appear, as a fortiori, Rule  

19 and Rule 21 are also differently worded. Rule 19 deals with re-

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admission of appeal “dismissed for default”, where the appellant  

does  not  appear  at  the  time of  hearing,  Rule  21 talks  of  “re-

hearing of the appeal” when the matter is heard in the absence of  

the  respondent  and  ex-parte  decree  made.  In  Abdur  Rahman  

case  (supra),  this  Court  made  it  clear  that  because  of  non-

appearance of the appellants before the High Court, High Court  

could not have gone into the merits of the case in view of specific  

course  of  action  that  could  be  chartered (viz.  dismissal  of  the  

appeal in default above) continued in the explanation to Order XLI  

Rule 17,  CPC and by deciding the appeal  of  the appellants on  

merits,  in  his  absence.  It  was  held  that  the  High  Court  had  

transgressed  its  limits  in  taking  into  account  all  the  relevant  

aspects of the matter and dismissing the said appeal on merits,  

holding that there was no ground to interfere with the decision of  

the trial court.  

14. In Ajit Kumar Singh case (supra) as well, same legal position  

is reiterated as is clear  from para 8 of the said judgment which is  

reproduced below:

“There  can  be  no  doubt  that  the  High  Court  erroneously  interpreted  Rule  11(1)  of

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Order  41  CPC.  The  only  course  open  to  the  High Court was to dismiss the appeal for non- prosecution in the absence of the advocate for  the  appellants.  The High  Court  ought  not  to  have  considered  the  merits  of  the  case  to  dismiss  the  second  appeal.(See:  Rafiq  v.  Munshilal (1981) 2 SCC 788). The same view  was  reiterated  in  Abdur  Rahman  v.  Athifa  Begum (1996) 6 SCC 62.”

15. However,  after  taking note of the aforesaid legal  position,  

the Court went further with a poser as to whether the case should  

be remanded to the High Court for fresh disposal in accordance  

with the law. In the facts of that case where the findings of the  

first appellate court was recordedthat there existed a relationship  

of landlord and tenant between the parties and since possession  

was taken as long back as in the year 1986 i.e. long before the  

filing of the appeal, the court refused to exercise discretion under  

Art.136 of  the Constitution to  remand of  the case to  the High  

Court for fresh disposal.  Thus, on the issue of law this judgment  

supports the case of the appellants herein. The Court, however,  

deemed it proper not to exercise its discretion and entertain the  

petition under Art. 136 for the aforesaid reasons.

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16. Reverting  to  the  facts  of  the  present  case,  as  already  

pointed  out  above,  the  respondent  had  filed  the  Suit  seeking  

partition of two properties claiming half share each in both these  

properties mentioned in Schedules A and B. The trial court had  

decreed the Suit in respect of Schedule B property but dismissed  

the same qua Schedule A property. Both the parties had gone in  

appeal.  In so far as appeal of the respondent is concerned, the  

same has been allowed exparte as nobody appeared on behalf of  

the appellants.    This course of action was available to the High  

Court  as sub-rule (2) of Order XLI Rule 17 categorically permits it.  

Though the appellants  moved application for  setting aside this  

order, the same was dismissed on the ground that no reasonable  

or sufficient cause for non-appearance was shown. Therefore, this  

part of the order of the High Court is without blemish and is not to  

be interfered with. Appeal their against is dismissed.

17. In  so  far  as  appeal  of  the  appellants  against  grant  of  

preliminary decree in respect of Schedule B is concerned, it could  

not have been heard on merits in the absence of the appellant.  

The Court could only dismiss it in default.

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18.  Having said so, the question that arises is that even if the  

appeal  was  to  be  dismissed  in  default,  whether  that  order  

warranted to be recalled on application made by the appellants.  

As is clear from the reading of Rule 19 of Order XLI, the appellants  

were supposed to show sufficient cause for their non-appearance.  

The High Court has given categorical finding that no such cause is  

shown. The learned senior counsel for the appellants did not even  

address on this aspect or argued that the reason given by the  

appellant in the application filed before the High Court for non-

appearance amounted to sufficient cause and the order of the  

High Court is erroneous on this aspect.  As a result, even if we  

treat  the  order  of  the  High  Court  deciding  the  appeal  of  the  

appellants  on  merits  was  not  proper  and  proceed  further  by  

substituting it with the order dismissing the said appeal in default,  

we  do  not  find  any  reason  to  recall  the  order  dismissing  the  

appeal in default.  

19. As  a  consequence,  these  appeals  fail  and  are  hereby  

dismissed.

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……………………………..J.     (Surinder Singh Nijjar)

……………………………J.                     ( A.K.Sikri)

New Delhi, April 21, 2014