HARBANS PERSHAD JAISWAL (D) BY LRS.versusURMILA DEVI JAISWAL (D) BY LRS.

                     (2014] 5 S.C.R. 291


       HARBANS PERSHAD JAISWAL (D) BY LRS.                        A
                              v.
           URMILA DEVI JAISWAL (D) BY LRS.
             (Civil Appeal No. 4656 of 2014) '

                      APRIL 21, 2014 I
   [SURINDER SINGH NlJJAR AND A.K. SIKRI, JJ.]

     Code of Civil Procedure, 1908 - Or. XL/ rr. 17, 19 and
~1 - Hearing'of appeal ex-parte - Cross-appeals - During
hearing of the appeals, one of the parties not represented -      C
Decision in the appeals against that party on merit - Plea of
the unsuccessful party that the appeals could not have been
decided on merit and at the most could have been dismissed
for default - Held: An appeal can be heard on merits if the
respondent is unrepresented, but if the appellant is              o
unrepresented, it can be dismissed only in default - Ln the
present cases, the appeal, in which the unsuccessful party was
respondent, could have been decided on merit - But the
appeal in which the party was appellant could have been
dismissed only in default and not on merit - However, since       E.
the High Court has given categorical finding that no sufficient
cause for non-appearance is shown, there is no reason to
recall the order.

    The respondent filed a suit seeking partition of two
properties claiming half share in each i.e. Schedule A and        F
Schedule B properties. Trial court decreed the suit in
respect of Schedule B property, but dismissed the same
qua Schedule A property. Cross-appeals were filed before
High Court. The counsel for the appellant did not appear.
Hence, both the appeals were decided on merit ex-parte.           G
The appellants filed petitions seeking setting aside of the
ex-parte orders. High Court dismissed the petitions.
Hence the present appeals.                 -

                             291
    292     SUPREME COURT REPORTS             [2014] 5 S.C.R.

A      The .appellant co,r;iten~ed that the appeal filed by the
  _.appellant irithe High Court could not have been
   dismissed on merit!! wh~n .the appellant remained
   unrepresented and at niost, it could have been dismissed
   only in default.
B                              ,
       Dismissing the appeals 1 the Court
                              .       .
        HELO: 1. Where the appeal is dismissed in default
  ·under Rule 17 of Order_XLI CPC, remedy is provided to
   the appellant under Rule 19 for re-admission of the appeal
C 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
D sufficient cause for non-appearance, if the appeal was
   heard in his absence and ex-parte decree passed. [Para
   12] [299-B-C]

       2. Thus, it is clear that whereas appeal can be heard
E 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
F 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-
  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
G in the absence of the respondent and ex-parte decree
  made. [Para 13] [299-C-F]
      3. In the present cases, in so far as appeal of the
  respondent before High Court is concerned, the same
H has been allowed ex-parte as nobody appeared on behalf
   HARBANS PERSHAD JAISWAL (D) BY LRS. v.                293
       URMILA DEVI JAISWAL (D) BY LRS.
of the appellants. This course of action was available to        A
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              B
part of the order of the High Court is without blemish and
is not to be interfered with. Appeal there-against is
dismissed. [Para 16) [300-H; 301-A-B]

     4. In so far as appeal of the appellants against grant
of preliminary decree in respect of Schedule B property          C
is concerned, it could not have been heard on merits in
the absence of the appellant. The Court could only
dismiss it in default. However, in view of Rule 19 of Order
XLI CPC, the appellants were supposed to show
sufficient cause for their non-appearance. The High Court        D
has given categorical finding that no such cause is
shown. The appellants did not take the plea 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              E
erroneous on this aspect. As a result, even if it is held that
the order of the High Court deciding the appeal of the
appellants on merits was not proper and the Court
proceeds further by substituting it with the order
dismissing the said appeal in default, there is no reason        F
to recall the order dismissing the appeal in default. [Paras
17 and 18] [301-C, D-F]

    Abdur Rahman and Ors. v. Athifa Begum and Ors.
(1996) 6 SCC 62: 1996 (5) Suppl. SCR 391; Ajit Kumar             G
Singh and Ors. v. Chiranjibi Lal and Ors. (2002) 3 SCC 609:
2002 (2) SCR 607 - relied on.                             ·
                     Case Law Reference:
    1996 (5) Suppl. SCR 391       relied on        Para 13       H
    294       SUPREME COURT REPORTS                  [2014] 5 S.C.R.


A         2002 (2) SCR 607               relied on         Para 14

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4656 of 2014.

        From the Judgment & Order dated 31.07.2006 of the High
B   Court of Judicature of Andhra Pradesh at Hyderabad in
    C.C.C.A. Misc. Petition No. 294 of 2006, C.C.C.A.M.P. (S.R.)
    Nos. 4471 and 4419 of 2006 in C.C.C.A. No. of 1994.

                                  WITH

C   C.A. Nos. 4657, 4658 and 4659 of 2014.

        S.S. Sanyal, V. Sridhar Reddy, Ch. Leela Sarveswar,
    Vineet Mishra, V.N. Raghupathy for the Appellants.

o         Anup George Chowdhuri, D. Vidyanandan, N. Rajaraman
    for the Respondents.

          The Judgment of the Court was delivered by

          A.K.SIKRI, J. 1. Leave granted.
E
          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
F   question of law in 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 woul~
G 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
H   as well as House No.4-114 to 117 with. appurtenant land
  HARBANS PERSHAD JAISWAL (D) BY LRS. v.          . 295
 URMILA DEVI JAISWAL (D) BY LRS. [A.K. SIKRI, J.]

  admeasuring about Ac.2.05 guntas at Madchal, R.R. District. A
  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 B
  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 % sha~e 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 c
  tenants from certain portion of the 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 D
  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 her brother were entitled E
  tQ half share each in respect of property at Madchal, R.R.
  District (Schedule B property). Suit qua Schedule A 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 F
  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       G
appeal against the said portion of the preliminary decree, before
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            H
    296      SUPREME COURT REPORTS              [2014] 5 S.C.R.


A 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
B 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
C 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
o   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.

       (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
E 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
F 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
G 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
H
  HARBANS PERSHAD JAISWAL (D) BY LRS. v.          297
 URMILA DEVI JAISWAL (D) BY LRS. [A.K. SIKRI, J.]

counsel for the appellants was bonafrde orthere was sufficient        A
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 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         B
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           c
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        D
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 fried by respondent herein
is concerned, same could be heard in the absence of the
appellants (respondents in that appeal), in view of the provision     E
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 not appear, the appeal shall be          F
     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          G
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
                                                                      H
    298        SUPREME COURT REPORTS                [2014] 5 S.C.R.


A   ha~ 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
    appe~ded !o Order XLI Rule 17 of the CPC. Mr. Sanyal also
B   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
C   the impugned 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.lt is a common case that the appeals filed by both the
D 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
E 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:
F               "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.
G
          [Explanation.- Nothing in this sub-rule shall be construed
          as empowering the Court to dismiss the appeal on the
          merits.]

               (2) Hearing appeal ex parte. -Where the appellant
H
  HARBANS PERSHAD JAISWAL (D) BY LRS. v.          299
 URMILA DEVI JAISWAL (D) BY LRS. [A.K. SIKRI, J.]
    appears and the respondent does not appear, the::appeal          A
    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
                                                                     8
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 ttie 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.                           C

      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 th~ court is not empowered to        o
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-admission of appeal        E
"dismissed for default", where the appellant does not appear
atthe 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            F
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 XU Rule
17, CPC and by deciding the appeal of the appellants on              G
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.
    300       SUPREME COURT REPORTS               [2014] 5 S.C.R.


A        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 Order 41 CPC. The
B
          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 theJnerits of the case to dismiss the second
          appeal.(See: Rafiq v. Munshi/p.I (1981) 2 SCC 788). The
c         same view was reiterated in Abdur Rahman v. Athifa
          Begum (1996) 6 sec 62."

       15. However, after taking note of the aforesaid legal
  position, the Court went further with a poser as to whether the
D 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
E 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
F to exercise its discretion and entertain the petition under Art.
  136 for the aforesaid reasons.

        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
G these properties mentioned in Schedules A and 8. 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
H as nobody appeared on behalf of the appellants. This course
  HARBANS PERSHAD JAISWAL (D) BY LRS. v.          301
 URMILA DEVI JAISWAL (D) BY LRS. [A.K. SIKRI, J.]

of action was available to the High Court as sub-rule (2) of          A
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     B
to be interfered with. Appeal there 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.                C

     18. Having said so, the question that arises is that even if
the appeal was to be dismissed in deiault, wh~ther 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             D
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      E
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          F
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.

Kalpana K. Tripathy                              Appeals dismissed.