Case Note & Summary
The appellant, Smt. Nayan alias Chandrakala Chandrakant Borkar, filed a Second Appeal before the High Court of Bombay at Goa challenging the judgment and order dated 30.12.2014 passed by the learned Adhoc District Judge-1, FTC-1, South Goa, Margao, in Regular Civil Appeal No. 110/2014. The respondent, Shri Gurudas Hari Borkar, had originally filed Regular Civil Suit No. 62/2007/F before the Civil Judge, Junior Division, Margao, seeking eviction of the appellant from the suit house and a perpetual injunction restraining her from entering the suit house. The learned Civil Judge decreed the suit on 09.05.2014. Aggrieved, the appellant filed an appeal before the First Appellate Court. On 25.11.2014, the matter was called out; the appellant's advocate was present, and the respondent appeared in person and requested time, which was granted. The matter was adjourned to 11.12.2014 for final argument. On 11.12.2014, when the matter was called, none appeared for the appellant. The First Appellate Court heard the respondent's advocate and allowed nine days for the appellant to file written arguments with no leave to advance oral arguments. On 30.12.2014, the First Appellate Court dismissed the appeal on merits. The appellant then filed the present Second Appeal. The sole issue for determination was whether the impugned order of the First Appellate Court was contrary to Order 41 Rule 17 of the Code of Civil Procedure, 1908. The appellant's counsel argued that the appeal was decided on merits, which is not permissible under Order 41 Rule 17 CPC. The respondent's counsel supported the impugned order. The High Court examined the provisions of Order 41 Rule 17 CPC, which states that where the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed or adjourn it. The court noted that the First Appellate Court had dismissed the appeal on merits, which is not contemplated under Order 41 Rule 17. The High Court held that the impugned order was contrary to law and set it aside, remanding the appeal to the First Appellate Court for fresh hearing in accordance with law. The Second Appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Appellate Procedure - Ex Parte Dismissal on Merits - Order 41 Rule 17 CPC - The First Appellate Court dismissed the appeal on merits when the appellant's counsel was absent on the date of hearing, after hearing the respondent and granting nine days for written arguments without leave to advance oral arguments. The High Court held that such dismissal on merits is not permissible under Order 41 Rule 17 CPC, which only allows dismissal for default or adjournment, not a decision on merits. The impugned order was set aside and the appeal was remanded for fresh hearing. (Paras 7-10)
Issue of Consideration
Whether the First Appellate Court's order dismissing the appeal on merits in the absence of the appellant's counsel and without granting an opportunity to file written arguments is contrary to the provisions of Order 41 Rule 17 of the Code of Civil Procedure, 1908.
Final Decision
The Second Appeal is allowed. The impugned judgment and order dated 30.12.2014 passed by the learned Adhoc District Judge-1, FTC-1, South Goa, Margao, in Regular Civil Appeal No. 110/2014 is set aside. The Regular Civil Appeal No. 110/2014 is restored to its original file and the First Appellate Court is directed to decide the appeal afresh in accordance with law. No order as to costs.
Law Points
- Order 41 Rule 17 CPC
- ex parte dismissal on merits
- right to be heard
- appellate procedure
