Bombay High Court
Smt. Khairunisa Begum W/O Sayed Ahmed vs Jeelani Begum S/O Mohd. Salar on 10 September, 2008
Equivalent citations: AIR 2009 (NOC) 1156 (BOM.) (AURANGABAD BENCH), 2009 (2) AIR BOM R 113 2009 A I H C 2011, 2009 A I H C 2011, 2009 A I H C 2011 2009 (2) AIR BOM R 113, 2009 (2) AIR BOM R 113
Author: S.B.Deshmukh
Bench: S.B.Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
SECOND APPEAL NO.257 OF 1988
Smt. Khairunisa Begum w/o sayed Ahmed
Mohiuddin Toofan [Original plaintiff)
..Appellant
VERSUS
1. Jeelani Begum s/o Mohd. Salar,
2. Anwar Khan s/o Mohd. Salar,
3. Iqbal Ahmed s/o Mohd. Salar,
4. Mohd. Latif s/o Mohd. Salar,
5. Kaeimulla s/o Mohd. Asadullha,
(Original Defendants)
..Respondents
Mr. Y.M.Khan, Advocate h/f.Mr. K.G.Khadar, Advocate
for the Petitioner.
Mr. P.F.Patni, Advocate for the respondents.
CORAM : S.B.DESHMUKH, J.
DATED : 10TH SEPTEMBER, 2008.
ORAL JUDGMENT
. Heard learned counsel Mr. Y.M.Khan I/b.
K.G.Khadar, who appears for the appellant and learned advocate Mr. P.F. Patani, who appears for respondents No.1 to 5.
2. This second appeal is admitted by this Court by the order passed on 1st November, 1988 on following substantial question of law. They are reproduced ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 2 ) hereinbelow.(Grounds No.2 and 7 in the memo of appeal.) (1) The learned Appellate Judge has been categorically in observing vide para 7 of impugned judgment which is quoted in verbatim as follows:-
"When plaintiff and her Advocate were absent, there is only remedy to ig dismiss the suit under section 17 Rule 2, Civil Procedure code, but error has committed by lower court by delivering judgment, still it cannot be said that it is judgment on merit. Instead of following procedure as laid down under Civil Procedure Code be delivered judgment."
Then the matter cought to have been remanded to trial court so that the Plaintiff-Appellant could have moulded her reliefs in accordance with nature of orders. She has been thus left now in the lurch and she has been stained without relief. This is a substantial ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 3 ) questions of law.
(2) The question as to whether an appeal lay before the District Court is a subject matter of controversy indifferent High Courts and there is no authoritative pronouncement of Supreme Court. The only authority of Bench of High Court cited at Bar is not at all on fourth with the case an hand in as much as in the Bombay case there was adjournment rejected.
application given
Then
by Plaintiff
there was another
which
amendment
was
application and there was withdrawal purshish
of Advocat'es appearance. The most
distinguishing feature is non-examination of
any witness and therefore, the ratio of said
case is in applicable to the present. This is
a substantial question of law.
3. The appellant was the plaintiff in Regular
Civil Suit No. 647/1984. This suit was for permanent injunction, restraining the defendants from interfering in to the demolition and construction of eastern wall of house No.3-1-1985. The defendants, ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 4 ) after entering appearance, have filed written statement Exh. 28. The learned Trial Court, after considering the pleadings of the parties, had settled about 7 issues. Issue No. 1 framed by the Trial Court, has placed burden of proof on plaintiff regarding her claim that she is legal owner of eastern wall of house No.3-1-85. Issue No. 5 is relevant and important, which was framed regarding the entitlement of the plaintiff for perpetual injunction, the burden of proof obviously was on the plaintiff. The Trial Court of has recorded finding on issue No. plaintiff and finding on issue No. 5 is 1 in favour recorded in negative i.e. against the plaintiff. The suit of the plaintiff came to be dismissed with costs by Trial Court by judgment and decree dated 15th of December, 1986. This dismissal of the suit, against the the plaintiff, was challenged by filing Regular Civil Appeal No. 11/87 in the Court of learned District Judge of Aurangabad (First Appellate Court). Regular Civil Appeal No. 11/87 has been dismissed with costs by the First Appellate Court by its judgment and decree passed on 30th of September, 1988. It was plaintiff's appeal. The aggrieved plaintiff thereafter filed this second appeal.
::: Downloaded on - 09/06/2013 13:50:25 ::: ( 5 )
4. It is not in dispute that suit was listed for
hearing before the Trial Court. On 9th September,
1986 hearing of the suit was adjourned at the instance of the plaintiff to 22nd of September 1986. On 22nd September, 1986 also hearing of the suit was adjourned at the instance of the plaintiff. It was plaintiff's application Exh.40 seeking adjournment. After 22nd September, 1986 hearing of the suit was adjourned till 3rd of October, 1986 and thereafter, on that day also it was again adjourn at the instance of plaintiff to 15th December, of November, 1986. Hearing was adjourned to 4th 1986 and thereafter, again it was adjourned to 11th of December, 1986 at the instance of the plaintiff. However, it has been recorded by the Trial Court in para 9 of the judgment that on 11th of December, 1986, Advocate for the defendant objected the motion of adjournment on behalf of the plaintiff.
Grievance was raised that plaintiff would not come before the Court as her purpose is served. It is not in dispute that plaintiff had applied for temporary injunction under Order XXXIX, Rule 1 and such order of temporary injunction in favour of plaintiff was granted by the Trial Court on 28th of October, 1984.
It was below Exh. 5. This temporary injunction order below Exh. 5 was subject matter in Misc. Civil ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 6 ) Appeal No. 157/86. This Misc. Civil Appeal was dismissed by the Appellate Court by its judgment and order passed on 11th of March, 1985. In substance, temporary injunction granted on 28th of October, 1984 was in operation till 11th of December, 1986, the day on which suit was for hearing before the Trial Court.
The plaintiff was not present. Adjournment was sought
on behalf of the plaintiff. It was objected by the
Advocate for the defendant. The Trial Court examined
D.W. No. 1 Mr. Iqbal Ahmed at Exh. 46 and passed
the judgment
ig in the suit, dismissing the
costs on 15th of December, 1986.
suit with
5. The learned counsel for the appellant
strenuously urged that dismissal of the suit by the
Trial Court is under Order XVII, Rule 2 of the Code of Civil Procedure. The learned Judge has committed manifest error while dismissing the suit of the plaintiff. He fairly concedes that plaintiff was not present on the date of hearing i.e. on 11th of December, 1986 before the Trial Court. However, according to him, it was for the Court to dismiss the suit in default. Since the Trial Court has recorded the evidence of defendant and delivered the judgment on merits, according to him, there was no remedy ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 7 ) available for the aggrieved plaintiff, but to file Regular Civil Appeal under section 96 of the Code of Civil Procedure. His second submission is that the First Appellate Court has also accepted part of his submission that the Trial Court ought to have dismiss the suit in default and should not have proceed to deliver the judgment. According to him, such observations are made by the First Appellate Court in para 7 of the judgment. However, the First Appellate Court, after making such observations, ought to have remanded plaintiff.
the matter affording the opportunity to He, therefore, in view of these the two grounds seeks quashment and setting aside of the orders of the Courts below and remand of the matter.
The learned counsel Mr.Patni relied on two judicial pronouncements. First is 2004(4) LJSOFT 88, in the matter of "Ganesh s/o Masuji Raner Vs. Pandharinath s/o Reshmaji Raner" and another judicial pronouncement is in the matter of "Nagar Palika Nigam Gwalior Vs. Motilal Munnalal", reported in A.I.R. 1977 MADHYA PRADESH 182.
6. In the case on hand, two provisions of the Code are relevant. Order XVII, Rule 2 of the Code of Civil Procedure lays down procedure if parties fail to ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 8 ) appear on day fixed. It is provided that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. Reading of Order XVII, Rule 2, makes it obligatory to refer to Order IX of the Code of Civil Procedure. Order IX is titled as "Appearance of parties and consequence of non-appearance". Sub-rule No. 3 has considered the situation, defendant) where appears.
neither party
Suit in this situation,
(plaintiff
to
or
be
dismissed. Under Order IX, Rule 3, if Court comes
across the situation that neither plaintiff nor
defendant is present for hearing when suit is called
on for hearing, Court may make an order of dismissal
of the suit. Rule 4 of Order IX has made available
remedy to such plaintiff whose suit is dismissed under Order IX, Rule 2 or 3. Since Order IX, Rule 3 takes in its ambit, failure to appear either by plaintiff or by defendant, the order IX, Rule 4 has made available two remedies in favour of the plaintiff, whose suit is dismissed for non appearance of the plaintiff under Order IX, Rule 3. Amongst these two remedies provided under Order IX, Rule 4, plaintiff, subject to law of ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 9 ) limitation may bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure or for non appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit. Thus, Order IX, Rule 4 has made available two remedies to aggrieved plaintiff whose suit is dismissed under Order IX, Rule 3 of the Civil Procedure Code.
. Order
ig IX, Rule 8 provides a procedure where
defendant only appears and plaintiff does not appear
when the suit is called on for hearing. Here the
Court is obligated to make an order that the suit is
dismissed, unless the defendant admits the claim or
part thereof, in which case the Court shall pass a
decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder. Under Order IX, Rule 8, admission of the claim as whole or in part by defendant is material.
Order IX, Rule 9 bars the fresh suit. In the case on hand, it is true that, the suit was ultimately called on for hearing on 11th of December, 1986. Factually ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 10 ) it is not in dispute that plaintiff was not present in the Court. It is also admitted fact that Trial Court has recorded evidence of D.W. 1 Iqbal and ultimately dismissed the suit. I have considered the judgment of the Trial Court as well as the judgment of the First Appellate Court. The submission of the learned counsel for the appellant that suit is decided on merits seems to be attractive, but such submission cannot be accepted. In the case on hand, though D.W. 1 Mr. Iqbal is examined, in my view, the judgment of the merits.
Trial Court cannot be said to be a While holding that the judgment of the Court judgment on is on merits, it is required to be pointed out that the Court has recorded the evidence on behalf of the plaintiff, and the Court has also recorded the evidence on behalf of the defendant. After considering the evidence brought before the Court, on behalf of the plaintiff and defendant, Court can decide the lis between the parties in accordance with the provisions of law and evidence either oral or documentary or all sort of admissible evidence. In the case on hand, it is indisputable that evidence on behalf of the plaintiff is not recorded. The record shows that on behalf of the defendants written statement was filed and as many as 7 issues were ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 11 ) settled by the Trial Court at Exh. 38. Considering the scheme of Order IX and facts obtaining in the case on hand, in my view, the judgment delivered by the Trial Court can be said to be under Order IX, Rule 8 of the Code of Civil Procedure. In other words remedy to the aggrieved plaintiff, in the case on hand, was available under Order IX, Rule 9 of the Code of Civil Procedure.
7. The aggrieved plaintiff indisputably has resorted Code of to section 96 read with section 41 Civil Procedure and had filed first of the appeal before the First Appellate Court. The power, jurisdiction of the First Appellate Court and scope of section 96 has been considered by the Supreme Court in the matter of "Santosh Hajari V. Purushowttam Tiwari, 2001, A.I.R. S.C.W. 723".
. Apart from this judgment of the Supreme Court, in my view, considering the facts obtaining in case on hand section 99 of Code requires to be considered. It is provided under section 99 of the Code of Civil Procedure that no decree shall be reversed or substantially varied, nor shall any case remanded, in appeal on account of any misjoinder, or non-joinder of ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 12 ) parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. In the case on hand, in my view, it cannot be said that the judgment of the Trial Court is contrary to section 99 of the Code. Section 99 has some purpose, which is arranged after section 96, which gives the power to Appellate Court to decide the appeal. Apart from this section 99, in my view, two more provisions are required to be referred to; Order XLI, Rule 23 Rule provides 23 and remand of case 23A.
by the
Order
Appellate
XLI,
Court. Order XLI, Rule 23A also provides remand in
certain circumstances. The party seeking remand
either from the First Appellate Court or from the High Court, being also Appellate Court, has to make out the case either under Order XLI, Rule 23 or 23A. While considering the submissions of remand, the Court has to consider the provisions of Code conjointly i.e. three provisions, Order XLI, Rule 23, Order XLI, Rule 23A and section 99 of the Code of Civil Procedure. In other words section 99 of the Code has imposed some conditions on Appellate Court while considering the submissions for reversion of decree substantial variation of decree and remand of case word "shall" is ::: Downloaded on - 09/06/2013 13:50:25 ::: ( 13 ) employed which indicates the mandate of section 99 of the code for reversion, substantial variation or remand of the case by the Appellate Court. Section 99 also does have a proviso carving out exception to non-joinder of a necessary party.
8. In the case on hand, reading these provisions together, in my view, case for remand is not established. These two grounds, therefore, have to be answered or decided against the appellant. Two judicial for the pronouncements relied on by learned Advocate Appellant are on the promise of different facts, and therefore, have no application to the facts obtaining in the case on hand.
9. Second appeal being meritless needs to be dismissed.
. Second appeal stands dismissed without any order as to costs.
[ S.B.DESHMUKH, J.] ssc/sa257.88 ::: Downloaded on - 09/06/2013 13:50:25 :::