Thakur Sukhpal Singh Vs. Thakur Kalyan
Singh  INSC 184 (2 May 1962)
02/05/1962 DAYAL, RAGHUBAR
DAYAL, RAGHUBAR KAPUR, J.L.
GUPTA, K.C. DAS
CITATION: 1963 AIR 146 1963 SCR (3) 733
Appeal-Appellant appearing at hearing but not
addressing court-Dismissal for default-Legality of-If Court bound to decide
appeal on merits after Perusal of recordRefusal of adjournment-Interference by
appellate court-Code of Civil Procedure, 1908 (Art. V of 1908), O. 41, rr. 16,
30, 31, 32.
The appellant's appeal was listed for hearing
before the High Court four times during the course of about a year. On the last
occasion the 'appellant's counsel stated that he had no instructions. The
appellant who was present asked for an adjournment to arrange for the fees and
to instruct another counsel. The adjournment was refused and upon the appellant
expressing inability to address the court the High Court dismissed the appeal
for default. The appellant contended that the High Court was bound to dispose
of the appeal on merits on the material before it.
Held, that the High Court had the power to
dismiss the appeal without considering the merits. An appellate court was bound
to consider only the submissions made by the appellant and if no submissions
were made by him, it was not bound to look into the record ; it could simply
say that the appellant had not urged anything to show that the judgment and
decree under appeal were wrong.
Mt. Fakrunisa v. Moulvi Izarus, A. I. R. 1921 P. C.
Mathura Das v. Narain Das, I. L. R. 1940 All. 220,
734 Sangram Singh v. Election Tribunal.
Kotah, Bhurey Lai Baya, (1955) 2 S.C.R. 1, referred to.
Baldeo Prasad v. Kunwar Bahadur, (1912)
I.L.R. 35 All, 105;
Syed Mohammadi Husain v.Mt. Chandro, A.I.R.
1937 All. 284 ;
and Barkat Ali v. Gujrat Municipality, A.I.R. 1937 Lah. 691, not approved.
Per Kapur and Dayal,jj.-The High Court was
right in refusing the application for adjournment. The appellant had ample time
and opportunity to instruct his counsel. It was within the discretion of the
High Court to allow or not to allow the adjournment and the Supreme Court
ordinarily did not interfere with such discretionary orders.
Per Das Gupta, J.-The High Court was wrong in
refusing to grant the adjournment. When the counsel engaged refused to address
the court it was next to impossible for the client to engage another counsel on
the spot to argue the case and impossible for such counsel to address the
Court. It is also not reasonable to expect the lay client to argue the appeal.
Though an appellate court should not lightly interfere with the discretion
exercised by a court in refusing a prayer for adjournment it could interfere if
the refusal was not in the interests of justice.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 469 of 1960.
Appeal by speoial leave from the judgment and
decree dated January 5, 1965, of the former High Court of Madhya Bharat,
Gwalior, in Civil First Appeal No. 11 of 1950.
K. L. Gosain. P. W. Sahasrabudhe and A.G.
Ratna parkhi, for the appellant.
K. L. Mehta for the respondent No. 1 1962.
May 2. The Judgment of Kapur and Dayal, JJ.,was delivered by Dayal, J., Das
Gupta, J., delivered a separate Judgment.
RAGHUBAR DAYAL, J.-this appeal by special
leave, against the decree of the Madhya Bharat High Court dated January 5,
1955, raises the 735 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.
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
appellant, 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 Mitthura Das v. Narain Das
(1), for default, with costs.
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 O.XLI, m. 30,
31 and 32, Code of Civil Procedure. We do not agree with this contention.
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
"(1) On the day fixed, or on any other
day to which the hearing may be adjourned, the appellant shall be heared in
support of the appeal.
(1) 1. L. R. 1 40 All. 220: A. 1. R. 1 40
736 (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 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-r. (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.
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. 32 of O.XLI which reads:
.lm15 "The judgment of the Appellate
Court shall be in writing and shall state(a) the points for determination;
(b) the decision there on;
(c) the reasons for the decision; and, (d)
where the decree appealed from is reversed or varied, the relief to which the
appellant is entitled;
737 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. The
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
determination, there can be no decision thereon and no reasons for such
decision. Such is the position when the appellant does not address the Court
and does not submit anything against the decision of the Court below. The
memorandum of appeal does contain the grounds of objection to the decree
appealed from, without any argument or narrative as laid down in sub-r. (2) of
r. O.XLT. Such grounds cannot take the place of the points for determination
contemplated by r. 31. Not unoffensive certain grounds of objection raised in
the memorandum of appeal are not argued or passed at the bearing and in that
case such grounds cannot be taken to be the points for determination and are
rightly not discussed in the judgment at all. It is for the appellant to raise
the points against the judgment appealed from. He has to submit reasons against
its correctness. Hecannot just raise objections in his memorandum of appeal and
leave it to the appellate Court to give its decision on those points after
going through the record and determining the correctness thereof. It is not for
the appellate 738 Court itself to find out that the points for determination
can be and then proceed to give a decision on those points.
The Privy Council observed in Mi. Fakrunisa
v. Moulvi Izarm (1) "In every appeal it is incumbent upon the appellants
to show 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. Their Lord-ships are unable
to find that this,duty has been discharged." With respect, we agree with
this and hold that 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 contention. It is only then that the judgment of the
appellate Court can fully contain all the various matters mentioned in r. 31,
This Court observed in' Sangram Singh v.
Election Tribunal, Kotah, Bhurey Lal Baya (2 ) at page 8:
"Now a code of procedure must be
regarded as such: It is procedure, something designed to facilitate justice and
further its ends: ...
Too technical construction of sections that
leaves no room for reasonable elasticity of interpretation should therefore be
guarded against (provided always that justice is done to boa sides) lest the
very means designed for the furtherance of justice be used to frustrate
it." (1) A.I.R. 1921 P.C. 55, 56. (2) (1955) 2 S.C.R. 1.
739 The provisions of r.31 should therefore
be reasonably construed and should held to require the various particulars to
be mentioned in the judgment only when the appellate has actually raised
certain points for determination by the appellate Court, and not when no such
points have been raised as had been the case in the present instance when the
appellant did not address the Court at all.
The provisions of r.30 of O.XLI support our
construction of r.31. This rule reads:
"The Appellate Court, after hearing the
parties or their pleaders and referring to any part of the proceeding, whether
on appeal or in the Court from whose decree the appeal is preferred to which
reference may be considered necessary, shall pronounce judgment in open Court,
either at once or on some future day of which notice shall be given to the
parties or their pleaders." 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 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 what 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.
740 In this connection, reference may be made
to the provisions of s.423, Criminal Procedure Code, which provides the
procedure to be followed by the appellate Court in disposing of criminal appeals.
The relevant portion of its sub-s.(1) is :
"The Appellate Court shall then send for
the record of the case, if such record is not already in Court. After perusing
such record, and hearing the appellant or his pleader, if he appears, and the
Public Prosecutor, if he appears, and, in case of an appeal under section 411A,
sub-section (2), or section 417, the accused, if he appears, the Court may, if
it considers that there is no sufficient ground for interfering, dismiss the
appeal, or may x x x x x The appellate Court is thus enjoined to pass the final
order in the appeal after it had perused the record and heard the appellant or
his pleader and the Public Prosecutor. The perusal of the record is enjoined on
the Court. The Court cannot dispose of the appeal merely after hearing the
appellant or his pleader and the Public Prosecutor. It has to per. use the
record. In this respect, these provisions are different from the provisions of
r.30, O.XLI, C.P.C. and the Legislature specifically requires the perusal of
the record by the appellate Court before deciding the appeal.
It does not so provide in r.30, O.XLL C.P.C.
The view that we take, also finds support
from the object which the Legislature probably had in providing that the
judgment must contain the matters mentioned in r.31. The object seems to be
that the parties should know for what reasons the decision has gone against
them and thereby be in a position to decide whether they should go up 741 in
appeal or revision against the judgment. If they do not know the decision and
the reasons therefore they cannot make up their mind and, even if they have no
intention to go up in appeal, they may not even be satisfied about the Court
considering the matter for determination properly.
Another object can be that the second
appellant Court or the revision be in a position to know why the Courts below
came to a certain conclusion. Such knowledge is undoubtedly of great assistance
to the Court. If therefore, DO contention is raised 'by the appellant in the
first appellate Court, no question of raising any contention in the next
appellate Court arises, and therefore, the necessity of writing a complete
judgment contemplated by r.31 does not arise.
This matter has been before a few High Courts
for decision and the expression of' opinion had not been uniform.
In Baldeo Prasad v. Kunwar Bahadur (1) of the
two appellants, one appeared at the date of hearing and in the absence of his
counsel, made an application for adjournment which was rejected, and when asked
to address the Courr failed to do so saying that he had nothing to say, the
appellate Court dismissed the appeal as it was not supported. The other
appellant, Musammat Ram Piari, applied for the restoration of the appeal. It
was rejected. Two appeals were taken to the High Court and the High Court
allowed the appeals and said :
"It is quite clear that the learned
District Judge is wrong. To ask a non-legal appellant to argue his case is
asking for what is practically impossible. The application for adjournment shows
clearly and distinctly that he did not wish to drop his appeal. He wished to
(1) (1912) I.L.R. 35 AU. 105 742 press it. The bare fact that he could not
argue it did not justify the District Judge in dismissing it. It was necessary
for him under the circumstances to consider the grounds of appeal and to decide
the case on the merits.
This he has not done." This may be a
good order on general grounds. But no attempt has been made to justify it on
the basis of the provisions of the Code of Civil Procedure.
In Syed Mohammadi Husain v. Mt. Chandro (1)
Niamatullah J., said:
"After refusing to adjourn the case,
lower appellate Court was bound to decide the appeal before it. The inability
of the pleader to argue did not relieve the Court of the necessity of applying
its mind to the facts of the case and to decide it on its merits. A Court is
not entitled to dismiss an appeal for 'want of prosecution' only because the
appellant, if he appears personalty, or his pleader, who represents him, is,
for any reason, unable to argue the appeal. The Court should proceed in the
manner laid down by 0.41, rr. 30 and 31 Civil P.C........
This was a case in which the appeal was
dismissed for want of prosecution and the judgment therefore dealt with the
correctness of the appellate Court in dismissing the appeal for want of
prosecution when the appellant, though present in Court, was unable to argue
the appeal. This case, however, does not indicate how compliance can be made
with the provisions of rr. 30 and 31 of 0. XLI when the appellant submits
nothing to the Court for consideration. This case was considered and over-ruled
by the Division Bench of the Allahabad High Court in (1) A.I.R. 1937 All.
284,285, 1937 All. L.R. 439.
743 Mathura Das v. Narain Das (1) on which
the High Court of Madhya Bharat relied. This case held that in such
circumstances it was sufficient for the Court to pass an order of dismissal for
default which did not necessarily mean that the appeal was dismissed for
default of appearance but would mean that it was dismissed for default of
In Barkat Ali v. Gujrat Municipality
observations similar to those made in Baldeo Prasad v. Kunwar Bahadur (3) were
No reference was made to the provisions of
the Code of Civil Proceedure in that connection. Rather, it appears from the
following observation that the view was expressed on general grounds :
"The case is an important one from 'the
point of view of all concerned and it is not desirable that a case of this
description should go practically in default".
There is little support for this basis of
decision in the Code of Civil Procedure and the Privy Council has pronounced
against it. We find it difficult to uphold the view that even when no arguments
art urged and no reasons put forward in arguments against the correctness of
the decision appealed against, the appellate Court should peruse the record and
find out for itself whether the judgment is right or wrong.
We therefore repel the contention for the
appellant that the High Court had to decide the appeal after going through the
record of the case and the judgment of the Court below and must have complied
with the provisions of r. 31 of O.XLI C.P.C., when the appellant did not
address the Court.
(1) I.L.R. 1940, All. 220: AJ.R. 1940. All
(2) A.I.P. 937 leh.691. (3) (1912) I.L.R. 35
744 Another point urged for the appellant is
that the High Court should not have rejected the appellant's application for
adjournment of the case on January 4, 1955. It is a matter within the
discretion of the Court to allow an adjournment and such a discretionary order
is, ordinarily, not a matter for the consideration of this Court in an appeal
under Art. 136 of the Constitution. The petition for special leave did not
mention this contention among the grounds of appeal. No special reasons exist
for our entering into this contention. The order under appeal gives adequate
reasons for rejecting the application for adjournment.
The adjournment was sought on the ground that
the appellant could not arrange for the payment of fees to his counsel and to
instruct him, as he got intimation of hearing of the appeal three days before
the date of hearing. The application for adjournment does not form part of the
record prepared in this Court. The learned Judges of the High Court were of
opinion that the appellant had sufficient time to instruct his counsel and to
make arrangements for making the necessary payment to him. The appeal was
posted for hearing on Feb. 23, 1954, practically a year before the date of
hearing on which the appellant was refused adjournment of the hearing. Between
February 23, 1954 and January 4, 1955, the case was also put up for hearing on
April 5, and May 4, 1954. In the circumstances, the appellant ought to have
completed his instructions to the counsel, prior to February 23, 1954. He
failed to do so and failed to complete the instructions till January 4, 1955.
In the circumstances, we are of opinion that the exercise of discretion by the
Court below was not in any way capricious or arbitrary and therefore is not to
be interfered with.
We therefore see no force in this appeal and
dismiss it with costs.
745 DAS GUPTA, J.-On the main question of law
raised in this case, viz., whether the appellate Court is bound to decide an
appeal on merits on the basis of the material on the record when the appellant
appears at the hearing but does not address the Court, I agree, for the reasons
mentioned in the judgment of my learned brother Mr. Justice Raghubar Dayal J.
that the answer must be in the negative.
In my opinion, however, there is considerable
force in the further submission made on behalf of the appellant that the
refusal of the appellant's prayer for adjournment on the January 4, 1955 has
resulted in a denial of justice to him.
It has been rightly stressed on behalf of the
respondents that the conduct of the proceedings before a court must necessarily
be left to the court itself and an appellate court should not lightly interfere
with the discretion exercised by a Court in refusing a prayer for adjournment.
To say, however, that a Court hearing an
appeal shall in no circumstances interfere with an order made by the Court
below refusing a prayer for adjournment is to be the slave of a formula. But
you cannot do justice by formulae only.
The circumstances under which the prayer for
adjournment was made in this case are peculiar. It appears that after numerous
adjournments in the bearing of appeal before the High Court, some of which were
given at the instance of the appellant, some at the instance of the respondents
and some were necessitated by the Court being otherwise engaged, the appeal
finally came up for hearing before the High Court on January 4, 1955. On that
date the Counsel of the present appellant, who was also the appellant before the
High Court, informed the Court that he had no instructions to represent the
appellant. Apparently, the Counsel had not 746 received his fees and so was not
prepared to argue the case on behalf of the appellant. The appellant who was
present in person, appears to have admit bed that he had not been able to pay
the fees but he wanted some time so that he could make the necessary
arrangements. The High Court refused this prayer for time and appears to have
asked the appellant whether he would argue the case himself The appellant
expressed his inability to address the Court.
It appears to me that 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, in my opinion, to expect that a lay
client should be able to' argue his appeal. To ask the appellant personally, in
the circumstances like these, to argue the appeal is to ask for the impossible.
It appears to me to be neither fair nor just that, when a Counsel' suddenly
withdraws from a case, the lay client should be asked to argue the appeal
himself. Justice, in my opinion, requires that in such a case the client should
be given some time-however short-to engage a Counsel.
I am constrained to think 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 interests of
In the peculiar circumstances of the case, I
would therefore allow the appeal and remand the case to the High Court for a
proper hearing of the appeal before it.
By Court. In accordance with the opinion, of
the majority, the appeal is dismissed with 'Costs.