Dismissal of an appeal for delay in filing is in effect a confirmation of the decree appealed against, and the inherent power of the court under Section 151 of the Code of Civil Procedure cannot be invoked to set aside the dismissal of the appeal if the dismissal was not on merit.

Ashok Kumar Dasadhikari, J.

Respondents/opposite parties obtained a decree for eviction against the plaintiffs/petitioners. Being aggrieved by and dissatisfied with the judgment and decree passed by the learned Trial Judge an appeal being Appeal No.7 of 2002 was filed. In that appeal the appellants/petitioners moved an application under Section 151 of the Code of Civil Procedure for amendment of challan by which the appellants/ petitioners deposited rent in the learned Court below. That application was rejected. The appellants/petitioners moved before this Hon'ble Court and this Hon'ble Court set aside the order of the learned Court below and the learned Court below was directed to proceed and to dispose of the original case being Appeal No.7 of 2002 as expeditiously as possible preferably within a period of six months, but not later than 8 months from the date of receipt of the order, without granting unnecessary adjournment to any of the parties even on consent. Lower Court records was returned to the learned First Appellate Court with special messenger cost at the cost of the petitioner. That is how the revisional application was disposed of. However, after the order was passed the First Appellate Court started hearing of the appeal. Thereafter First Appellate Court by its order dated 14th November, 2008 disposed of the petition filed under Order 19, Rule 1 and Order 41, Rule 47 of the Code of Civil Procedure directing the appellant to prove certified copy of the deeds by her oral evidence and about the subsequent facts. Appeal was fixed on 17th November, 2008 for examination of D.W.1 and for cross- examination.

2. On 17th November, 2008 appellant filed certified copy and a copy of notice and the learned Court below was pleased to fix the appeal on 25th November, 2008 for further evidence of D.W.1 and cross-examination. However, thereafter different dates were fixed. From 2nd March, 2009 to 30th January, 2010 there was no Judge in the First Appellate Court. Thereafter again the appeal was adjourned. Plaintiff/opposite party filed petition under Order 6, Rule 17 of the Code of Civil Procedure for amendment for the plaint and a petition for shifting the case. Appellant filed written objection against the petition. However, the appeal was fixed on 8th June, 2011. On that date learned lawyer for the appellant/petitioner filed an application with a prayer for adjournment since learned Senior Advocate of the appellant/petitioner undergone medical treatment and test and he could not come to court on that date. It was also stated in the petition for adjournment that due to inadvertence and haste the case is fixed today for hearing of appeal without disposing of the petitioner's application under Order 22, Rule 4 read with Section 151 of the Code of Civil Procedure and without fixing the case for further examination of the appellant. However, prayer was made for adjournment by the appellant. This application for adjournment was disposed of by the First Appellate Court recording that on 8th June, 2011 hearing of appeal was fixed as last chance but the appellant filed petition for time on the ground stating that learned Senior Advocate is ill and he could not appear for hearing. Later on plaintiff/respondent filed petition for amendment of plaint. It was recorded in the order that it was found that Hon'ble High Court in C.O.3052 of 2004 passed an order to dispose of the appeal within six months but not later than eight months from the date of receipt of order without granting unnecessary adjournment to any of the parties even on consent and the order of the Hon'ble High Court was communicated by the Assistant Registrar, High Court, Appellate Side, Calcutta and order was received on 11th June, 2008 and the First Appellate Court was not available since learned Judge was not there. It was recorded in the order that on the previous day, the order of the Hon'ble High Court was not brought to the notice of the court, this is why the