Thakur Sukhpal Singh. vs Thakur Kalyan Singh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1962 Supreme(SC) 200

SUPREME COURT OF INDIA
J.K. KAPUR, K.C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.
Thakur Sukhpal Singh, Appellant
Versus
Thakur Kalyan Singh and another, Respondents.
Civil Appeal No. 469 of 1960.
Advocates appeared
Mr. K. L. Gosain. Senior Advocate, (M/s. P. W. Sahasrabudhe and A. G. Ratnaparkhi Advocates, with him), for Appellant Mr. K. L Mehta Advocate, for Respondent No.1

Advocates:
A.G.Ratnaparkhi, K.L.GOSAI, K.L.Mehta, P.V.Sahasrabudhe

Headnote:PERUSAL OF THE RECORDS BY THE APPELLATE COURT - APPELLANT TO SHOW REASON WHY JUDGMENT APPEALED AGAINST SHOULD BE DISTURBED - SCOPE OF THIS RULE—DUTY OF COURT - WHERE COUNSEL WITHDRAWS FROM APPEAL - “MAY”—AS USED IN THIS RULE—SCOPE AND MEANING
       -in every appeal it is incumbent upon the appellants to show some reason why the judgment appealed from should be disturbed, there must be some balance in their favour when all the circumstances are considered to justify the alteration of the judgment that stands. It is the duty of the appellant to show that the judgment under appeal is erroneous for certain reasons and it is only after the appellant has shown this that the Appellate Court would call upon the respondent to reply to the contentions. It is only then that the judgment of the Appellate Court can fully contain all the various matters mentioned in this Rule -
       -it is to be noticed that this Rule does not make it incumbent on the Appellate Court to refer to any part of the proceedings in the Court from whose decree the appeal is preferred. The Appellate Court can refer after the hearing the parties, and their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the Appellate Court to refer to the proceedings. It is competent to pronounce judgment after hearing with the parties or their pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the Appellate Court can decide the appeal without any reference to any proceedings of the courts below and, in doing so, it can simply say that the appellants have not urged anything which would tend to show that the judgment and decree under appeal were wrong - Thakur Sukhpal Singh v. Thakur Kalyan Singh, AIR 1963 SC 146. It is not correct that the High Court had to decide the appeal after going through the records of the case and the judgment of the Court below and must have complied with this Rule, when the appellant did not address the Court.
       -when a counsel engaged by a party refuses to address the Court on behalf of his client, it is next to impossible for a client to engage another counsel on the spot to argue the case and ordinarily, impossible for the counsel thus engaged to address the Court then and there. It is not also reasonable to expect that a lay client should be able to argue his appeal. To ask the appellant personally, to argue the appeal is to ask for the impossible. It is neither fair nor just when a counsel suddenly ‘withdraws from a case, the lay client should be asked to argue the appeal himself. Justice requires that in such a case the client should be given some time however short to engage a counsel. Hence, held that the action of the High Court in refusing the appellant’s prayer for time to engage a counsel and to call on him to argue the case himself was not in the interest of justice
       -the word “may” as used in this Rule signifies that the granting of adjournment is discretionary with the Court ; the parties cannot claim adjournment as of right

Judgment

RAGHUBAR DAYAL, J.: (For himself and J. L. Kapur J.) This appeal, by special leave, against the decree of the Madhya Bharat High Court dated January 5, 1955, raises the question whether the Appellate Court is bound to decide an appeal on merits on the basis of the material on record when the appellant appears at the hearing but does not address the Court.

2. The appellant s first appeal against the respondents came up for hearing before the High Court on January 4, 1955. Mr. Mungre, who was the counsel for the appellants stated that he had no instructions to represent the appellant. The appellant did not deny this fact. His application for adjournment was rejected. The appellant was not prepared to address the Court. The High Court therefore dismissed the appeal, relying on the decision in Mathura Das v. Narain Das, ILR 1940 All 220, for default, with costs.

3. The contention raised for the appellant is that the High Court had no jurisdiction to decide the appeal fixed for final hearing without considering the proceedings of the Trial Court and the memorandum of appeal before it and that the right of the appellant to have the case decided on merits on the material before the Court was not dependent on his addressing the Court, Reliance is placed on the provisions of Order XLI. Rules 30,31 and 32, C. P. C. We do not agree with this contention.

4. Order XLI. R. 16 of the Code provides the procedure to be followed by the appellate Court on the hearing of an appeal which has not been dismissed under sub-r. (1) of R. 11 of that Order. Rule 16 reads:

"(1) 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.

(2) 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."

It is clear from sub-r. (1), that it is the duty of the Appellate Court to hear the appellant in support of the appeal. This, however, does not mean that the appellate Court cannot decide the appeal if the appellant does not make his submissions to the Court showing that the judgment and decree under appeal were wrong. The appellate Court is not to force the appellant-to address it. It can, at best, afford him an opportunity to address it. If the appellant does not avail of that opportunity the appellate Court can decide the appeal. Sub-rule (2), indicates that the appeal can be dismissed without hearing the respondent. The appellate Court will do so if it was not satisfied that the judgment under appeal was wrong.

5. Learned counsel for the appellant does not dispute these propositions. His contention, however, is that even if the appellant does not address the Court, the Court must go through the record and the Judgment under appeal and come to its own conclusion about the correctness of the decision under appeal. Support for this contention is sought from the provisions of R. 31 of O. XLI which reads:

" The judgment of the Appellate Court shall be in writing and shall state -

(a) the points for determination;

(b) the decision thereon;

(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

It is urged that the judgment of the appellate Court has to state the points for determination, the decision thereon and the reasons for the decision, and these the appellate Court cannot do till it has gone through the record and considered the entire matter on record including the judgment under appeal. These matters have to be in the judgment when points in dispute between the parties are raised before the appellate Court. If no such points are raised for consideration the appellate judgment cannot refer to the points for determination in its judgment and, when there be no points raised for determinatio

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