IMPORTANT POINT
While hearing an appeal, it can be decided on merit in absence of counsel for respondent; but it can only be dismissed for default in case of absence of counsel for appellant.

Headnote:(a) Code of Civil Procedure, 1908 – Order XLI Rule 17(2) – In absence of respondents, High Court deciding the appeal ex parte – Application for setting aside ex parte decree dismissed for insufficient cause – No infirmity. (Para 16)
       (1996) 6 SCC 62; (2002) 3 SCC 609 – Relied upon
       (b) Code of Civil Procedure, 1908 – Order XLI Rule 17(1) – High Court hearing the appeal in absence of the appellant and deciding it on merit – Not permissible – Court could only have dismissed it for default. (Para 17)
       (c) Code of Civil Procedure, 1908 – Order XLI Rule 19 – Appeal dismissed for default – Appellant filing application for recall thereof – Not showing sufficient cause – High Court rejecting the application – No infirmity. (Para 18)
       Facts of the case:
       One Late Shiv Pershad Jaiswal was the owner and possessor of House No.11-2-378, Habeed Nagar, Hyderabad as well as House No.4-114 to 117 with appurtenant land admeasuring about Ac.2.05 guntas at Madchal, R.R. District. After his death, the respondent herein (daughter of Shiv Pershad Jaiswal) filed the Suit claiming1/3rd share in the aforesaid properties which were described in Schedule A and B to the plaint. In the said Suit, she impleaded her brother and mother as the defendants. During the pendency of the Suit, the mother died which led to the amendment in the Suit claiming ½ share in the aforesaid properties. Additional relief of rendition of accounts was also prayed for, as the brother (appellant No.1) was collecting the rent from the tenants from certain portion of the Suit properties.
       By way of amendment, appellant No.2 herein (wife of appellant No.1) was also impleaded in whose favour her mother had bequeathed property by executing a Will dated 6.7.1983.
       The City Civil Court passed the preliminary decree holding that the respondent as well as appellant No.1 (herein brother) were entitled to half share each in respect of property at Madchal, R.R. District (Schedule A property). Suit qua Habeeb Nagar (Schedule B property) was dismissed. The Trial Court also directed the respondent to proceed against the appellants for rendition of accounts at the time of passing of final decree for the rent realized by appellant No.1 after the death of their mother respondent on 25.9.1985.
       The respondent and appellant filed appeals against the different portions of the preliminary decree.
       However, on the day of hearing the counsel for the appellants did not appear in the Court. The High Court heard the counsel for the respondent on the merits of the appeal allowed the appeal of the respondent and dismissed the appeal of the appellants.
       The appellants came to know about the said ex-parte judgment and order sometime in the year 2006. The appellants moved applications before the High Court pleading that in the absence of their counsel, appeal filed by them could not have been decided on merits and the only course open to the Court was to dismiss the appeal in default, as that is the only permissible course of action provider in Order XLI Rule 17 of the Code of Civil Procedure in such an eventuality. Appeal filed by the appellants was dismissed.
       Finding of the Court:
       There is no infirmity in the impugned judgment.
       Result: Appeals dismissed.

JUDGMENT

A.K.SIKRI,J.

1. Leave granted.

2. In all these appeals identical question of law is raised, which has arisen for consideration in the same background facts in these cases, which are between the same parties. There is thus, a commonality of parties, the dispute as well as question of law in all these cases and for this reason these appeals were heard analogously and are being disposed of by this common judgment.

3. The factual details giving rise to the filing of these appeals do not need a large canvass, and our purpose would be served in drawing the picture with the following relevant facts:

4. One Late Shiv Pershad Jaiswal was the owner and possessor of House No.11-2-378, Habeed Nagar, Hyderabad as well as House No.4-114 to 117 with appurtenant land admeasuring about Ac.2.05 guntas at Madchal, R.R. District. After his death, the respondent herein (daughter of Shiv Pershad Jaiswal) filed the Suit, being O.S.1287 of 1985, in City Civil Court, Hyderabad claiming1/3rd share in the aforesaid properties which were described in Schedule A and B to the plaint. In the said Suit, she impleaded her brother and mother as the defendants.

During the pendency of the Suit, the mother died which led to the amendment in the Suit filed by the respondent claiming 1/2 share in the aforesaid properties. Additional relief of rendition of accounts was also prayed for, as the brother (appellant No.1) was collecting the rent from the tenants from certain portion of the Suit properties. By way of amendment, appellant No.2 herein (wife of appellant No.1) was also impleaded in whose favour her mother had bequeathed property by executing a Will dated 6.7.1983. The Suit was contested by the defendants by filing written statement.

Number of issues and additional issues were framed and both the parties led their evidence in support of their respective cases. After hearing the arguments, the learned City Civil Court passed the preliminary decree dated 5.8.1993 holding that the respondent as well as appellant No.1 (herein brother) were entitled to half share each in respect of property at Madchal, R.R. District (Schedule A property). Suit qua Habeeb Nagar (Schedule B property) was dismissed. The Trial Court also directed the respondent to proceed against the appellants for rendition of accounts at the time of passing of final decree for the rent realized by appellant No.1 after the death of their mother respondent on 25.9.1985.

5. The respondent was not satisfied with the aforesaid preliminary decree vide which she was held not entitled to any share in the Schedule A property. She, accordingly, filed the appeal against the said portion of the preliminary decree, before the High Court of Andhra Pradesh. Likewise, the appellant also filed appeal against other portion of the preliminary decree whereby the respondent was held entitled to half share in the Schedule B property. These appeals were listed for final hearing on 29.9.2005. However, counsel for the appellants Ms. Shalini Saxena did not appear in the Court on that day. The High Court heard the counsel for the respondent on the merits of the appeal and rendered judgment dated 29.9.2005 whereby appeal of the respondent was allowed and that of the appellants was dismissed.

6. As per the appellants, they came to know about the said ex-parte judgment and order dated 29.9.2005 sometime in the year 2006. Accordingly, the appellants moved four applications with following description:

(i) C.C.C.A. M.P. No.294/2006 for the leave of the High Court to engage their counsel to represent their case,

(ii) C.C.A. M.P. SR No.4416/2006 with the prayer to dispense with the filing of the certified copies of decree and judgment and also typed copies of judgment and decree in C.C.C.A. No.4 of 1994 dated 29.9.2005.

(iii) C.C.C.A.M.P. (SR) No.4417 of 2006 praying the High Court to condone the delay of 158 days in filing the application for setting aside the ex-parte decree and judgment dated 29.9.2005 in C.C.C.A. No.4 of 1994.

(iv) C

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2014 Supreme(SC) 323

IMPORTANT POINTWhile hearing an appeal, it can be decided on merit in absence of counsel for respondent; but it can only be dismissed for default in case of absence of counsel for appellant.

Cases Referred (2)

IMPORTANT POINT
While hearing an appeal, it can be decided on merit in absence of counsel for respondent; but it can only be dismissed for default in case of absence of counsel for appellant.