1. Appeal against High Court order dismissing an appeal for non-prosecution following the rejection of an adjournment request in a compensation matter. (Para 3 )
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1997 Supreme(SC) 1404
SUPREME COURT OF INDIA
S P Bharucha, V N Khare
STATE OF J&K, APPELLANT
VERSUS
ENQUIRY OFFICER AND OTHERS, RESPONDENTS.
Civil Appeal No. 7528 of 1997 (Arising out of SLP (C) No. 12687 of 1997), decided on November 3, 1997.
The court emphasized the importance of hearing the appeal on its merits and coming to a conclusion rather than dismissing it solely on the ground of rejected adjournment.
Headnote:
Adjournment - Appeal Dismissal - Non-prosecution - The court held that the High Court was right in declining the adjournment, but it was necessary for it to hear the appeal and come to a conclusion on its merits. Dismissing the appeal only on the ground of rejected adjournment was not justified. The appeal was allowed, and the order under appeal was set aside, restoring the appeal to be heard and disposed of on merits.
Fact of the Case:
The appeal was dismissed by the High Court for non-prosecution based on the rejection of an adjournment sought by the Government Advocate.
Finding of the Court:
The court found that the High Court was right in declining the adjournment but should have heard the appeal and come to a conclusion on its merits instead of dismissing it solely on the ground of rejected adjournment.
Issues: The issues involved the dismissal of the appeal for non-prosecution based on the rejection of an adjournment and the failure of the High Court to hear the appeal on its merits.
Ratio Decidendi: The High Court should have heard the appeal and come to a conclusion on its merits instead of dismissing it solely on the ground of rejected adjournment.
Final Decision: The appeal was allowed, and the order under appeal was set aside, restoring the appeal to be heard and disposed of on merits.
Legal Category Hierarchy
Table of Contents
2. Respondent contended the appeal was dismissed on the ground of non-maintainability. (Para 4 )
3. Rejection of an adjournment request does not justify dismissing an appeal for non-prosecution without hearing the matter or recording a refusal to argue. (Para 5 )
4. An appeal cannot be dismissed for non-prosecution solely on the ground that a request for adjournment was rejected. (Para 5 )
5. Appeal allowed; order set aside and the original appeal restored to the High Court for disposal on merits. (Para 6 , 7 )
6. Can an appeal be dismissed for non-prosecution solely because a request for adjournment was rejected?
No. While a court may rightly decline an adjournment, it must still hear the appeal on its merits or record that the advocate declined to argue before dismissing it for non-prosecution. (Para 5 )
7. Does recording a party's submission regarding non-maintainability constitute a judicial finding on that issue?
No. Recording a submission that an appeal is not maintainable is not equivalent to making a legal finding on the maintainability of the appeal. (Para 4 )
8. Must a superior court hear a matter on its merits if the record is available instead of remanding it?
Not necessarily. A superior court may decline to hear the matter and instead remand it to the lower court to be heard on merits after correcting the lower court's legal position. (Para 6 )
ORDER
1. Delay condoned.
2. Leave granted.
3. The order under appeal was passed in an appeal (CIA No. 40 of 1995) by the High Court of Jammu and Kashmir. The order states some facts, records the submission on behalf of the second respondent that the appeal was not maintainable, and proceeds thus :
"The records of this appeal state that appellants counsel has been taking adjournments and according to the learned counsel for the respondents, only to delay the grant of relief to Respondent 2.
Considering the overall circumstances and that Respondent 2 had been struggling for compensation for the last more than five years of his property which was admittedly taken over by the security forces and the tactics adopted by the appellant, a request for adjournment sought by the Government Advocate, Mr. Geelani, is rejected and this appeal is dismissed for non-prosecution,"
4. Learned counsel for the second respondent was at pains to convince us that the appeal had been dismissed on the ground that it was not maintainable. The submission is without merit. The order under appeal records a submission to that effect but gives no finding thereon.
5. The appeal was dismissed for this reason : "... a request for adjournment sought by the Government Advocate, Mr. Geelani, is rejected and this appeal is dismissed for non-prosecution". That the High Court was right in declining the adjournment is not in dispute, but it was then necessary for it to hear the appeal and come to a conclusion on its merits. If for any reason the appellants advocate declined to argue the appeal, that is what the High Court should have recorded and should then have dismissed the appeal on the ground of non-prosecution. There was no justification for dismissing the appeal only on the ground that the appellants application for adjournment had been rejected.
6. Learned counsel for the second respondent tried to persuade us to hear the matter because the record was before us and not remand it. We decline to do so. We think that the High Court, having been set right on the legal position as aforestated, must now hear the appeal on its merits, including the aspect of maintainability, if argued.
7. The appeal is allowed. The order under appeal is set aside. The appeal (CIA No. 40 of 1995) is restored to the file of the High Court to be heard and disposed of on merits. No order as to costs.
