Kumar Singh & Ors Vs. Chiranjibi Lal & Ors  Insc 152 (20 March 2002)
Shah Mohammed Quadri & S.N. Variava Syed Shah Mohammed Quadri, J.
appeals are from the judgments and orders of the High Court of Judicature at Patna dismissing appellants' Second
Appeal No.24 of 1996, on August
12, 1998 and the
Review Petition in MJC No.2463 of 2000 on February 2, 2001.
appellants were the defendants in the suit in which their eviction was sought
by the respondents-plaintiffs from an area of 47 Kari comprising of house and Golla
situated in Plot Nos.797 and 798 appertaining to khata No.131 under Tauzi
No.414 Thana No.239 in Arrah Municipal Area (for short, 'the suit premises') on
the grounds of bona fide personal necessity and default in payment of rent
under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (for
short, 'the Act'). The suit was decreed by the Trial Court and the First Appeal
filed by the appellants was dismissed on September 6, 1995.
appellants then filed Second Appeal No.24 of 1996 in the High Court of
Judicature at Patna. When the case came up before the
High Court on August
12, 1998, nobody was
present on behalf of the appellants. However, the High Court dismissed the
Second Appeal on merits. The appellants then filed the aforementioned review
petition which was also dismissed on February 2, 2001. The said judgments and orders are
brought under challenge in these appeals by special leave.
On July 27, 2001, this Court issued notice limited
to the question as to why the order under challenge should not be set aside and
the matter remitted to the High Court for fresh disposal.
Kumar Pandey, the learned counsel for the appellants, contended that the High
Court had erred in disposing of the Second Appeal on merits in the absence of
the counsel for the appellants and not reviewing the order passed in the Second
perusal of the judgments under challenge discloses that the High Court
dismissed the Second Appeal on merits in the absence of the appellants and
their advocate. The High Court interpreted the phrase "hearing the
appellant or his pleader" in Rule 11(1) of Order 41 of the Code of Civil
Procedure ('for short, 'CPC') as to give adequate opportunity to the appellant or
his counsel. As the counsel for the appellants did not appear even though they
had adequate opportunity, the High Court held that it was open to it to deal
with the Second Appeal on merits and therefore it dismissed the review
will be useful to refer to sub-rules (1) and (2) of Rule 11 of Order 41 of
C.P.C. which read as under :
Power to dismiss appeal without sending notice to Lower Court –
The Appellate Court, after sending for the records if it thinks fit so to do,
and after fixing a day for hearing the appellant or his pleader and hearing him
accordingly if he appears on that day, may dismiss the appeal, without sending
notice to the Court from whose decree the appeal is preferred and without
sending notice on the respondent or his pleader.
on the day fixed or any other day to which the hearing may be adjourned, the
appellant does not appear when the appeal is called on for hearing, the Court
may make an order that the appeal be dismissed."
plain reading of the provisions shows that Rule 11 deals with the procedure
which the Appellate Court ought to follow before ordering notice to the
respondents. Sub-rule (1) empowers the Court to dismiss the appeal if it thinks
fit so to do after hearing the appellant or his pleader. To comprehend the
correct import of the phrase "after fixing a day for hearing the appellant
or his pleader and hearing him" it will be necessary to read sub-rule (2)
also which says that if on the date fixed or any other day to which the hearing
may be adjourned, the appellant (which means appellant or his pleader) does not
appear when the appeal is called on for hearing, the Court may make an order
that the appeal be dismissed. The dismissal postulated under this sub- rule is
dismissal for non-prosecution or dismissal for default as is commonly called.
This import of Order 41 Rule 11(1) and (2) is also fortified from a perusal of
Rule 17(1) and (2) read with the explanation added by Act 104 of 1976 and
provision of Rule 19 of Order 41 which provides for re-admission of appeal
dismissed for default. It says, inter alia, that where an appeal is dismissed
under Rule 11, sub-rule (2), or rule (17) or rule (18), the appellant may apply
to the Appellate Court for the re-admission of the appeal; and, where it is
proved that he was prevented by any sufficient cause from appearing when the
appeal was called on for hearing the Court shall re-admit the appeal on such
terms as to costs or otherwise as it thinks fit.
can be no doubt that the High Court erroneously interpreted Rule 11(1) of Order
41, CPC. The only course open to the High Court was to dismiss the appeal for
non-prosecution in the absence of advocate for the appellants. The High Court
ought not to have considered the merits of the case to dismiss the Second Appeal.
Rafiq & Anr. vs. Munshi Lal & Anr. [1981 (2) SCC 788]. The same view
was reiterated in Abdur Rahman & Ors. vs. Athifa Begum & Ors. [1996 (6)
next question that arises is whether the case should be remanded to the High
Court for fresh disposal in accordance with law.
the learned senior counsel appearing for the respondents, argued that the
appellants were inducted into possession of the premises as tenants. They,
however, denied the title of the respondents and the courts below found that
the relationship of landlord and tenant between the parties existed. He further
contended that the possession of the premises was taken by the respondents on
execution of the decree as long back as in 1986, therefore, the case need not
be remanded to the High Court as it would only prolong the litigation. However,
Mr.Pandey submitted that under the Bihar Land Reforms Act, 1950, the land in
question vested in the State as held by this Court in Mst.Bibi Sayeeda &
Ors. vs. State of Bihar & Ors. [1996 (9) SCC 516], therefore, the
respondents could not be said to be the landlords and that by virtue of the patta
granted by the erstwhile landlord before coming into force of the Act, the
appellants became patta holders and the respondents did not get any title from
the erstwhile landlord as by that time the Act had come into force and the land
vested in the State so erstwhile landlord had no title to transfer the land in favour
of the respondents. We do not want to express any opinion on this controversy.
view, under Section 116 of the Evidence Act, a tenant is estopped from denying
the title of the landlord. Having regard to the finding of the First Appellate
Court that the appellants executed a registered Kabuliyat (Ex.8) in favour Chandmati
Devi (mother of the plaintiffs) as well as in favour of other co-sharers having
patta (Ex.7) in respect of the suit premises and that the relationship of
landlord and tenant existed between the parties and taking note of the fact
that the possession of the premises was taken by the respondents as long back
as in 1986 and long before filing of the appeal, in our view, it is not a fit
case to exercise jurisdiction under Article 136 of the Constitution to remand
the case to the High Court for fresh disposal which would only prolong the
litigation without any useful purpose. In the result while correcting the error
of law committed by the High Court, we do not disturb the conclusion arrived at
by the High Court.
make it clear that this judgment will not preclude the appellants from claiming
any rights, if they are otherwise entitled to, under the Bihar Land Reforms
appeals are disposed of accordingly.
Shah Mohammed Quadri] ................................................J.
March 20, 2002.