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2008 Supreme(All) 1591
[2008(7) ADJ 438 (DB)]
ALLAHABAD HIGH COURT
BEFORE : S. RAFAT ALAM AND SUDHIR AGARWAL, JJ.
ANWARUL HASAN AND OTHERS ...........Appellants
Versus
D. SEN GUPTA AND OTHERS .............Respondents
(Review Application No. 52277 of 2007 In Special Appeal No. 887 of 1997, decided on 25th July, 2008)
Counsel :
Dharam Pal Singh for the Applicant; A.B. Saran for the Respondents.
Headnote:Code of Civil Procedure, 1908—Order XLI, Rule 17 and Order XLI, Rule 11—Contempt of Courts Act, 1971—Sections 19 and 23—Contempt of Courts (Allahabad High Court) Rules, 1977—Rules 17(4), 11, 12, 13 and 10—Recall application—Court held that special appeal was not maintainable—As appeal was dismissed in default—Intra-Court appeal was preferred by Review application against order of Single Judge whereby contempt petition of review applicant/appellant was dismissed—Against dismissal of contempt petition, no appeal is provided in Contempt of Courts Act—Reference and reliance on Order XLI, Rule 17 of C.P.C., is misconceived—So long appeal is not admitted, and if it is not maintainable, it cannot be said that such an order, after considering entire matter, could not have been passed by Court, since one of several Counsels appearing for appellant, has not attended Court—And appeal is not a matter of right—But, is a creature of statutes—Thus, Order XLI, Rule 17, C.P.C. has no application to instant appeal—There was no authority to show that in an appeal, arising out of Contempt proceedings, Provisions of C.P.C., would apply—Held, appeal was not maintainable—Thus, application for review, liable to be rejected. [Paras 5, 7, 11, 12, 15 to 23]
By the Court.—Heard Sri Dharam Pal Singh, Advocate for the review applicant and Sri A.B. Saran, Senior Advocate for the respondents at great length. It is contended by Sri Singh that on 23rd March, 2006 when this Court decided the appeal, one of the Counsel for the appellant, i.e., review applicant had sent adjournment on the ground of illness and, therefore, this Court ought not to have heard the matter on merits and instead, ought to have adjourned the case on the ground of illness. He further submitted that in case the Court was not inclined to adjourn the matter, treating the appellant as had not appeared, it was not open to the Court to decide the case on merit and instead the appeal ought to have been dismissed in default as provided in Order 41, Rule 17 of the Civil Procedure Code, 1908 (in short ‘C.P.C.’). He has also placed reliance on Apex Court’s decision in Abdul Rahman and others v. Athifa Begum and others, (1996) 6 SCC 62 and Rafiq and another v. Munshilal and another, AIR 1981 SC 1400.
2. From a perusal of record we find that the special appeal was initially filed by the review applicant (appellant) through Sri R.K. Awasthi, Advocate with the endorsement on Vakalatnama that Sri Ravi Kiran Jain, Senior Advocate, will appear. The appeal was presented in the Registry on 24.10.1997 and thereafter it was listed for admission on 26.4.2001 when nobody appeared for the appellant. The Court dismissed the appeal in default which order was recalled by the Court on 2.4.2002 on the application of the appellant. In the meantime, Sri G.N. Verma Advocate filed his Vakalatnama dated 8.2.2001 and Sri Hari Manish Bahadur Sinha, Advocate filed his Vakalatnama dated 11.2.2002 putting their appearance on behalf of the appellant. Thereafter another Vakalatnama dated 19.7.2004 was filed by Sri Bhagwati Prasad Srivastava, Advocate on behalf of the appellant. Though no Vakalatnama of Sri D.P. Singh, Advocate (Devendra Pratap Singh) is available on record, but the restoration application No. 50269 of 2001 was filed by him on 23.5.2001 and some listing applications were also filed by Sri D.P. Singh on behalf of the appellant. The appeal thereafter came up for admission before a Division Bench on 7.8.2003 when the Court required learned Counsel for the appellant to show as to how the appeal was maintainable and thereupon the learned Counsel for the appellant sought adjournment so as to prepare the matter further on the question of maintainability of appeal. This is evident from the order dated 7.8.2003 which is quoted below :
“Learned Counsel for the appellant has prayed for a short adjournment in order to enable him to study further the question relating to the maintainability of this appeal.
As prayed for, list in the next week.”
3. Thereafter it was listed before the Court from time to time but could not be heard. On 31.1.2006 Sri G.N. Verma, learned Counsel appearing on behalf of the appellant sought adjournment which was accepted and the case was directed to be listed in the next cause list. On 23.3.2006 when the matter was listed before this Court, the names of S/Sri R.K. Awasthi, G.N. Verma, D.P. Singh, H.M.B. Sinha and Bhagwati Prasad Srivastava, Advocates were shown in the cause list as Counsels for the appellant. An illness slip was sent only on behalf of one of so many Counsels, namely, Sri D.P. Singh. As we have seen from the order sheet, Sri D.P. Singh had not appeared in the case to argue the matter at any point of time. Though restoration application was filed by him, but that too was argued by Sri H.M.B. Sinha, Advocate as is evident from the order dated 2.4.2002 and as late as on 31.1.2006 also when this matter was listed before this Court, Sri G.N. Verma Advocate has appeared for the appellant and sought adjournment. Even after filing this review application which is under consideration, initially on 30th March 2007 Sri G.N. Verma had appeared before the Court and requested for adjournment which was allowed but today u
