Jammu & Kashmir High Court
Sudesh Kumar Sharma And Ors vs State Of J&K And Anr on 9 April, 2014
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU APLPA No. 6 OF 2012 AND LPAOW No. D-57 OF 2012 Sudesh Kumar Sharma and ors. Petitioners State of J&K and anr Respondent !Mr. R. P. Sangra, Advocate ^ Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 09.04.2014 :J U D G M E N T :
Muzaffar Hussain Attar \1. This is an application filed by the applicants (appellants in LPAOW No. D-53/2012), seeking recall of order dated 27.08.2012 whereunder the Letters Patent Appeal (LPAOW No. D-53/2012) filed by the applicants-appellants was dismissed on merits in their absence.
2. Learned counsel for the applicants-appellants submitted that the LPA was listed before the Letters Patent Bench on 27.08.2012 and figured at serial No. 10 of the regular cause list. Learned counsel referred to annexure A of the application to buttress his submissions. Learned counsel submitted that because of some unavoidable circumstances, he could not reach the Court in time and by the time, he reached the Court the appeal was dismissed by the Court on merits. Learned counsel invited the attention of the Court to Order XLI Rule 17(1) of the Code of Civil Procedure (for short CPC) and submitted that LPA could have not been dismissed by the Court on merits in absence of the appellants counsel. Learned counsel in support of his contention referred to and relied upon judgments of Honble Supreme Court in case titled Abdur Rahman and ors. v. Athifa Begum and ors.; (1996) 6 Supreme Court Cases 62 and Ghanshyam Dass Gupta v. Makhan Lal; (2012) 8 Supreme Court Cases 745 and submitted that the applicants-appellants be granted an opportunity for addressing arguments in the LPA. Learned counsel submitted that order dated 27.08.2012, in the circumstances, deserves to be recalled and the LPA be considered on its merits.
3. Before dealing with the submissions made at the Bar by the learned counsel for the appellants-applicants, it is deemed appropriate to refer to the controversy, which was brought before the learned writ Court and the Letters Patent Bench by the applicants-appellants.
4. A Civil Original Suit seeking declaration was instituted before the Court of learned Munsiff, Hirnagar in the year 1999 by respondents No. 2 against the applicants-appellants No. 2 & 3 and one Sh. Girdhari Lal (now dead) praying therein that respondent No. 2 (plaintiff) be declared to be exclusive owner in possession of the suit property. The claim of the applicants-appellants, it appears, was that respondent No. 2 (plaintiff) was not entitled to the suit property, as in respect of the same, grandfather of the applicant No. 1 and father of the applicants No. 2 and 3 had executed a Will deed on 23.2.1999 in favour of applicant No. 1 which was registered by the learned Sub Registrar, Hiranagar on the same day. Further claim of the appellants-applicants is that respondent No. 2 (plaintiff) gained the knowledge of the execution and registration of the Will deed on 23.2.1999 and applied for the issuance of certified copy of the same on 24.02.1999. Further case of the applicants-appellants is that respondent No. 2 (plaintiff) after expiry of about two months time filed civil suit for declaration against applicants No. 2 and 3 and their father on 13.04.1999 in which he did not make mention of the execution and registration of the Will deed despite having knowledge of the same. It is further claim of the appellants-applicants that during the pendency of the suit, in the year 2010, respondent No. 2 (plaintiff) filed an application before the trial Court praying for impleadment of applicant-appellant No. 1 as defendant in the pending civil suit on the ground that he learnt about the execution and registration of the Will deed only in December, 2009, when he was summoned by Additional Deputy Commission, Kathua in an appeal filed by applicant-appellant No. 1. It is further claim of the appellants- applicants that application of respondent No. 2 (plaintiff) was allowed by the trial court and applicant-appellant No. 1 was impleaded as party defendant to whom summon was issued for filing of the written statement. Written statement was filed on 02.11.2011. Respondent No. 2 (plaintiff) was allowed by the trial court to file replica vide order dated 19.03.2012 and the trial court vide order dated 08.05.2012 framed an addition issue viz., Whether the will Deed entitled in favour of defendant No. 4 valid? OPD. Applicants-appellants feeling aggrieved of orders dated 19.03.2012 and 08.05.2012 challenged the same in OWP No. 746/12 which was dismissed by the learned writ Court vide order dated 29.05.2012.
5. It is this order which was called in question in LPAOW No. D- 57/2012 which has been dismissed on merits by Letters Patent Bench vide its order dated 27.08.2012.
6. The forum of appeal and nature of orders/judgments against which appeal can be filed has been provided by clause 12 of the Letters Patent. Letter Patent owes its origin to sovereign power which has been protected by the Jammu and Kashmir Constitution Act 1939 A. D. and Constitution of Jammu and Kashmir. The form of LPA and procedure for its filing is regulated and governed by the Jammu and Kashmir High Court Rules, 1999 (for short the Rules of 1999). In terms of Rule 49 of the Rules of 1999, these appeals are called as Original Side Appeals.
7. LPA/Original Side Appeal is not appeal created by the CPC. Procedure prescribed in Order XLI of CPC, by its own force or operation, is not applicable to the LPAs/Original Side Appeals. Procedure prescribed in Order XLI (Rules 1 to 37) would not, thus, get attracted in respect of LPAs/Original Side Appeals. Rule 54 of the Rules of 1999 provides that subject to provisions of this Chapter, the rules applicable to Regular First Appeal and the provisions of Order XLI of Code of Civil Procedure shall as far as may be, applicable to Original Side Appeals. Thus, the principle underlying Order XLI of CPC may be applied for considering and dismissal of the appeals.
8. Even assuming, but not admitting that Order XLI of CPC, in its entirety and in all circumstances is applicable to the LPAs, still it requires to be seen as to whether rule 17(1) of Order XLI would be attracted to the facts and circumstances of this case.
9. The record would reveal that on its presentation before the Registry, LPAOW No.D-57/12 was noticed to be suffering from some defects. Defective appeal was listed before the Court on 13.08.2012, but it could not reach on that day and was ordered to be listed again. Thereafter, appeal was listed on 27.08.2012. It was on that day the appeal was considered in absence of the appellants and dismissed on merits.
10. Rule 1 of Order XLI of CPC provides for form of appeal and as to what has to accompany the memorandum of appeal. Rule 2 of Order XLI provides for grounds which may be taken in the memo of appeal. Rule 3 of Order XLI provides for rejection or amendment of memorandum. Rule 3-A provides for filing of application for condonation of delay in case appeal is filed beyond the period of limitation specified therefor. Rule 4 of Order XLI provides that one of several plaintiff or defendants may obtain reversal of whole decree where it proceeds on ground common to all. Rule 5 provides of stay of proceedings and of execution. Rules 6 to 8 provides for security and exercise of powers in appeal from the order made in execution of the decree. Rule 9 to 15 of Order XLI fall under Chapter Procedure of admission of appeal. Rule 16 to 29 of Order XLI fall under chapter procedure of hearing.
11. Rule 9 comes into play in case the memorandum of appeal is not rejected in terms of rule 3. Rule 9 authorizes for admission of memorandum of appeal and prescribes for recording of date of presentation and for registering in a book, to be kept for the purpose and such book in terms of rule 9(2) is called the register of appeals. Rule 10 provides for power of the appellate court to ask the appellant to furnish security for costs. Rule 10(1) provides that Appellate Court can, in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent demand from the appellant security for the costs of appeal, or of the original suit, or of both.
12. Rule 11 delineates the power to dismiss appeal summarily. Rule 11(1) provides that appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, can dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice to the respondent or his pleader.
13. Rule 11(2) provides that if on the day fixed or any other date to which the hearing can be adjourned appellant does not appear when the appeal is called on for hearing, the court will make an order that the appeal be dismissed. Rule 11-A provides for time within which appeal under Rule 11 shall be heard. The mandate of said rule is that appeal shall be heard as expeditiously as possible and endeavour shall be made to conclude such hearing within sixth days from the date on which the memorandum of appeal is filed.
14. Rule 12(1) provides that unless the appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal. Rule 13 provides for giving notice to the court whose decree is appealed from. Rule 14 provides for publication and service of notice of day of hearing of appeal. Rule 15 provides for the contents of notice. Rule 16 provides that on the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. Rule 16(2) provides that the court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply. Rule 17(1) provides that on the day fixed, or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order and dismiss the appeal. An explanation has been inserted in rule 17(1) by Act of XI 1983 w.e.f. 15.8.1983 which provides that nothing in the said rule shall be construed as empowering the Court to dismiss the appeal on the merits. In terms of Rule 17(2), Court has power to hear the appeal ex-parte in case appellant appears and the respondent does not appear. Rules 11 and 17 of Order XLI of CPC are taken note of:
11. Power to dismiss appeal without sending notice to lower Court.
(1) The appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice of the respondent or his pleader. (2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.
(4) Where an appellate Court, not being the High Court, dismisses an appeal under sub rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.
17. Dismissal of appeal for appellants default (1) Where on the day fixed, or any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on 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.
Hearing appeal ex parte- (2) where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
15. As already stated, Order XLI Rule 11 deals with the power of the Court to dismiss the appeal immediately after it is presented and registered in the register of appeals. Order XLI Rule 12 provides that if the appeal is not dismissed under Rule 11, then Court shall fix day for hearing of the appeal. It also provides that such day shall be fixed with reference to the current business of the court, the place of residence of the respondent and the time necessary for the service of the notice of appeal, so as to allow the respondent sufficient time to appear and answer the appeal on such day. Rule 17 prescribes about the power of the Court for dismissal of the appeal for appellants default.
16. Rule 11 and Rule 17 cover two distinct and different stages of an appeal. Rule 11 prescribes for power to dismiss the appeal immediately after the memorandum of appeal has been presented and registered in the register of appeals. Rule 17 gives power for dismissal of appeal for appellants default after it has been admitted to hearing. The passing of order for dismissal of appeal under Rule 11 and Rule 17(1) deal with two different and distinct stages in the hearing of an appeal. These two provisions, in view of the language in which they are couched, cover two distinct and different stages in the matter of considering of an appeal.
17. Rule 11 confers powers on the appellate court to dismiss the appeal after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant, if he appears on that day and also to dismiss the appeal without sending notice to Court from whose decree the appeal is preferred and without serving notice on the respondent or its pleader. Sub Rule 2 of Rule 11 is almost replica of sub rule 1 of rule 17. Legislatures in their wisdom have inserted explanation in terms of Act of XI of 1983 in the aforesaid sub rule, which prohibits the court to dismiss the appeal in absence of appellant on merits. Legislatures, in their wisdom, have not deemed it appropriate to insert like explanation either in sub rule (1) or sub rule (2) of rule 11 of Order XLI of CPC. The legislatures have made themselves distinction between the stages of appeal under Rule 11 and Rule 17 of Order XLI. In terms of rule 11, appeal can be dismissed summarily, whereas, in terms of rule 17, appeal can be dismissed in absence of appellant but Court has no power to dismiss the appeal on merits in absence of the appellant. The power of the appellate Court to summarily reject the appeal even on merits and in absence of appellant under rule 11 is, thus, retained by the legislatures whereas it has been specifically taken away under rule 17(1).
18. The words and expressions in Rule 11(1), and after fixing a day for hearing of appellant or his pleader, and hearing him accordingly if he appears on that day clearly and sufficiently denote that it is in the discretion of the Court to hear the appellant and his pleader before ordering for dismissal of appeal under said sub rule. The rule 11(1) in the manner it is framed by legislatures also authorizes the appeal Court to dismiss the appeal on merits in absence of appellant or his counsel when he fails to avail the opportunity of appearing before the Court on a date fixed.
19. Reverting back to the facts of this case, as already stated, defective appeal was presented before the Registry on 25.07.2012 and the same was listed on 13.8.2012. The appeal could not reach on that day and thereafter, it was listed on 27.08.2012 on which date it was dismissed on merits because nobody appeared on behalf of the appellants in support of the appeal. The power to dismiss the appeal summarily, as already highlighted, has been conferred by the legislatures on the appellate court in terms of Order XLI rule 11. The Court was thus justified in rejecting the appeal summarily in terms of aforesaid provisions of law. No fault, thus, can be found with the order which is sought to be recalled.
20. As already stated, Letters Patent is not the creature of CPC. The forum of appeal is given by the Letters Patent under clause 12 thereof. The power and jurisdiction of the Letters Patent Bench to summarily reject the appeal in the absence of the appellant or his counsel cannot be, thus, denied to the said Court or taken away by implication. The consideration and dismissal of the LPAs on merits, in the absence of the appellant or his counsel and without hearing them is only an exception and not a rule. LPA Court can dismiss an appeal summarily even in absence of the appellant and his counsel on merits when the case is completely and hopeless without any merit.
21. Looking to the facts and circumstances of this case, the appellants-applicants are defendants in a civil original suit which is pending on the files of learned Munsiff, Hiranagar. Trial court, after impleading applicant-appellant No. 1 as defendant in the suit and after allowing him to file written statement in which he made reference to the Will deed, permitted respondent No. 2 (plaintiff) to file further proceedings in accordance with the mandate contained in Order VIII Rule 9 of CPC. Similarly, Court framed additional issue after looking into the pleading of the parties.
22. The CPC provides a mechanism for dealing with the claims of the parties in an even handed manner. The procedural laws, as contained in CPC, are tools in the hands of the Court to arrive at just and lawful conclusion in a case pending before it. Allowing a party to file further pleadings and framing of an additional issue, in no circumstance, in the facts of this case, would prejudice the appellants-applicants as they have full opportunity to meet the case set up in the additional pleadings and by framing of additional issue, by leading the evidence. Allowing of filing of additional pleadings and framing of additional issue does not affect any of the substantive rights of any of the applicants-appellants and they will not suffer any kind of prejudice as they will get ample opportunity to lead evidence in support of their case. In order to do complete justice between the parties, the trial Court has chosen the right couse and has not committed any illegality or jurisdictional error. The writ of Certiorari, in the facts and circumstances of this case, could not be issued for quashing the impugned orders.
23. In terms of Section 105 of CPC, applicants-appellants, otherwise, would be within their rights to project any error, defect or irregularity in any order which would affect the decision of the Court in an appeal and set forth the same as a ground of objections in the memorandum of appeal.
24. Constitutional Court, in order to do complete justice between the parties, has inherent power to recall the order. The constitutional Court, in order to keep record straight, has power conferred on it under Section 94 of the Constitution of J&K read with Article 215 of Constitution of India to recall its orders. If the facts and circumstances of this case would warrant exercise of said power, the Court would not lose a moment to recall its order.
25. However, in view of our aforesaid discussion, we do not find any pressing requirement, in the facts and circumstances of the case to recall order dated 27.08.2012 passed in LPAOW No. D-57/2012. Judgment referred to by the learned counsel for the applicants- appellants deals with a situation which is covered by the Order XLI Rule 17(1) and not under Order XLI Rule 11 of the CPC. Even on the premise that Order XLI of the CPC is applicable to the LPAs, the order of rejecting the appeal has been passed under Order XLI Rule 11 of CPC and not under Order XLI rule 17(1) of CPC. The application seeking recall of order dated 27.08.2012 is, accordingly, rejected.
(Muzaffar Hussain Attar) (M. M. Kumar) Judge Chief Justice Jammu, 09.04.2014 Paramjeet