Case Note & Summary
The case involves a second appeal filed by the appellant, Smt. Nayan alias Chandrakala Chandrakant Borkar, 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, which dismissed her appeal. The respondent, Shri Gurudas Hari Borkar, had originally filed a suit for eviction and perpetual injunction against the appellant in Regular Civil Suit No. 62/2007/F before the Civil Judge, Junior Division, Margao, which was decreed 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, but the respondent sought time, which was granted, and the matter was adjourned to 11.12.2014 for final argument. On 11.12.2014, none appeared for the appellant. The first Appellate Court heard the respondent's arguments 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 core legal issue is whether the first Appellate Court's order was contrary to Order 41 Rule 17 of the Code of Civil Procedure, 1908. The appellant argued that the appeal was decided on merits, which is not permissible under Order 41 Rule 17 CPC. The respondent's counsel waived service. The High Court held that under Order 41 Rule 17 CPC, if the appellant does not appear, the appellate court may dismiss the appeal for default or may decide it ex parte, but cannot decide it on merits without hearing the appellant. The impugned order was set aside, and the appeal was restored to the file of the first Appellate Court for fresh disposal after hearing both parties. The second appeal was allowed.
Headnote
A) Civil Procedure - First Appeal - Dismissal on Merits in Absence of Appellant - Order 41 Rule 17 CPC - The first Appellate Court dismissed the appeal on merits when the appellant was absent and only the respondent was heard. Held that under Order 41 Rule 17 CPC, if the appellant does not appear, the court may dismiss the appeal for default or may decide it ex parte, but cannot decide it on merits without hearing the appellant. The impugned order was set aside and the appeal was restored to the file of the first Appellate Court for fresh disposal after hearing both parties. (Paras 7-9)
Issue of Consideration
Whether the impugned order of the learned first Appellate Court is contrary to the provisions of Order 41 Rule 17 of the Civil Procedure Code?
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 appeal is restored to the file of the first Appellate Court for fresh disposal after hearing both parties. No order as to costs.
Law Points
- Order 41 Rule 17 CPC
- dismissal for default
- ex parte hearing
- restoration of appeal
- procedural irregularity
