Allowed

Mr. Joao Alias John Fernandes (Since Dec.) through His Lr'S. and Anr. v. Mrs. Bernadina Fernandes and 6 Ors.

Bombay HC12 Feb 2014SA/74/2013

Case brief

AI extract

What is this about?

The High Court held that a first appellate court cannot decide an application for condonation of delay on merits in the absence of the appellant. The Court set aside the ex-parte dismissal and ordered a fresh hearing.

What did the court decide?

Impugned order quashed; First Appellate Court ordered to hear Civil Miscellaneous Application No. 112 of 2009 afresh.

Mr. Joao Alias John Fernandes (Since Dec.) through… — Execution and Attachment | Bombay HC (2014)

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1 SA74/13

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IN THE HIGH COURT OF BOMBAY AT GOA

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SECOND APPEAL NO. 74 OF 2013

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Mr. Joao alias John Fernandes, Since deceased through his legal heirs:

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a. Mrs. Percy Dsilva, aged 29 years, daughter of late Joao alias John Fernandes, married to Mr. Michael Dsilva,

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r/o H. no. 56, Jesus Nazareth wado, Siridao, Tiswadi-Goa. b. Mr. Michael Dsilva, aged 34 years, son in law of Joao alias John Fernandes, r/o H. No. 56, Jesus Nazareth, Siridao, Tiswadi-Goa.

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c. Mr. Sunny Fernandes, aged 28 years, son of Joao alias John Fernandes,

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r/o H. No. 608, Chorgal colony, Madhegal, Cacoda, Taluka Quepem, P. O. Curchorem-Goa. 2. Mrs. Rosy Fernandes, Major in age, housewife, widow of Joao alias John Fernandes r/o H. No. 608, Chorgal colony, Madhegal, Cacoda, Taluka Quepem, P. O. Curchorem-Goa. …. Appellants. v/s

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Mrs. Bernadina Fernandes, Age 63 years, housewife, Wife of late Silvestre alias Silvester Fernandes,

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Miss Angela Fernandes, Age 39 years, daughter of Late Silvestre alias Silvester Fernandes,

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2 SA74/13 3. Miss Souvenira Fernandes, Age 37 years, daughter of Late Silvestre alias Silvester Fernandes, 4. Mr. Joseph Fernandes, Age 33 years, son of Late Silvestre alias Silvester Fernandes, 5. Mr. Alfred Fernandes, Age 33 years, son of Late Silvestre alias Silvester Fernandes, All r/o H. No. 607, Chorgal Colony, Madhegal, Cacoda, Taluka Quepem, P. O. Curchorem-Goa. 6. Mrs. Antoneta Fernandes, Major in age, r/o House no. not known, Vollemol, Cacoda, Taluka Quepem, P. O. Curchorem-Goa. 7. Mr. Cassy Fernandes, Major, bachelor, r/o House no. not known, Vollemol, Cacoda, Taluka Quepem, P. O. Curchorem-Goa. …. Respondents. Mr. P. A. Kamat, Advocate for the Appellants. Mr. S. Narvekar, Advocate for the Respondents.

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CORAM: U. V. BAKRE, J. DATE : 12th February, 2014.

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ORAL JUDGMENT :

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Heard Mr. Kamat, learned Counsel appearing on behalf of the

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appellants and Mr. Narvekar, learned Counsel appearing on behalf of the respondents.

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This appeal is filed, by the original defendants of the suit who were appellants in Regular Civil Appeal filed before the District Judge, South Goa along with Civil Miscellaneous Application No. 122 of 2009 for condonation of delay in filing the said appeal, against the order dated 06/01/2009, passed by the District Judge-2, Margao(First Appellate Court), in the said Civil miscellaneous Application No. 112 2009.

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3 . After hearing the learned Counsel, limited question that arises in the present appeal is as follows :

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“Whether the First Appellate Court was competent to decide the application for condonation of delay in filing the appeal and consequently the appeal, on merit when on the date of hearing none appeared on behalf of the appellants and whether the Court was bound to dismiss the application/ appeal for want of prosecution or non-appearance in view of the Order XLI Rule 17(1) of Civil Procedure Code instead of hearing and deciding the application on merits?”

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4 . The appeal stands admitted on the above substantial question of law.

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The learned Counsel appearing on behalf of the respondents waives service of notice for final disposal. By consent, heard finally.

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6 . The respondents had filed Regular Civil Suit No. 20/2002/B against the appellants for declaration, permanent injunction and other consequential reliefs. By judgment, order and decree dated 29/11/2003, the said suit was decreed. Against the said Judgment, order and decree, the present appellants had filed Regular Civil Appeal before the District Court at Margao and since there was delay in filing the said appeal, they had also filed a Civil Miscellaneous Application no. 112/2009 for condonation of delay. It is admitted fact that as on the date of hearing of the said application for condonation of delay, neither the appellants nor their advocate was present. The matter was heard ex-parte and by the impugned order dated 06/01/2010, the said application for condonation of delay was dismissed by the First Appellate Court, with costs of Rs. 200/-. In the impugned order, soon after the cause title, itself, the learned First Appellate Court has noted that the appellants and their advocate was absent at the time of arguments as well as order. Again, in paragraph no. 5 of the order, it is mentioned that Advocate for the appellants was absent and that only the advocate for the respondents was heard.

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7 . A dismissal of an application for condonation of delay results in

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the dismissal of the appeal which can only be under Order XLI, Rule 11 of C.P.C. It is because of the above that the Appellant had withdrawn the writ petition which was earlier filed challenging the order dated 06/01/2009, and had filed the present Second Appeal, in view of the judgment of the Apex Court holding that against an order dismissing an application for seeking condonation of delay in first appeal, Second Appeal would lie.

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Once, it is sure that the dismissal of application for condonation of delay results in dismissal of appeal under order XLI Rule 11, it can be said that the provision of Rule 17 of Order XLI of C.P.C. is applicable to the application for condonation of delay also. Said Rule 17 of Order XLI of C.P.C. provides as under :

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“17. Dismissal of appeal for appellant’s default.- (1) Where on the day fixed, or on 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.

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Explanation: Nothing this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits.

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(2) Hearing appeal ex parte. — Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.”

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Mr. Kamat, learned Counsel appearing on behalf of the appellants has relied upon the judgment of learned Single Judge of this

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Court in the Case of “Smt. Gangubai w/o. Vishwambhar Dahatonde and Another vs Narayan s/o. Pundalik Wankhade” , reported in 2006 (6) All MR 541, wherein it has been held that in view of the reported judgments of this court in the cases of “Abdul Rahman and others Vs. Athifa Begum and others” [1997 (1) Mh. L. J. 566] and “Digambar Vanji Mali Vs. Kisan Khandu Chaudhar” [2001 (4) Mh. L. J. 358] and on plain reading of Rule 17(i) of Order XLI of C.P.C., it is clear that the First Appellate Court can dismiss the appeal if nobody is present for the appellants on the date of hearing and it is not proper on the part of the Appellate Court to record the findings on merits of the appeal and the only course available to the Appellate Court when the Appellant and his advocate are absent at the time of hearing, is to dismiss the appeal for non-appearance/for want of prosecution.

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Mr. Kamat, learned Counsel appearing on behalf of the appellants has also relied upon the judgment of the Apex Court in the case of “ Secretary, Deptt. Of Horticulture, Chandigarh and Another V/s. Raghu Raj ” (AIR 2009 SC 514), wherein it has been held that once the appeal is admitted and placed for hearing, it can be dismissed for default but cannot be decided on merits in the absence of appellant or his advocate.

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Since in the present case, the application for condonation of delay has been decided by the learned First Appellate Court on merits

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in the absence of appellants and their advocate, the impugned order is not sustainable and is therefore liable to be set aside. In the impugned order, the learned First Appellate Court has mentioned that at the time of arguments , advocate of the appellants was absent and the matter was kept back till 4.00 p.m. and then the advocate for the respondent was heard. In view of the word “may” used in Rule 17 of Order XLI of C.P.C., it was discretionary with the Court to dismiss the application for condonation of delay and consequently the appeal for want of prosecution or adjourn it to any future date. There is no explanation in the impugned order as to why, even by imposing costs, the First Appellate Court did not adjourn the hearing. In the interest of justice, I am of the view that an opportunity of being heard should be given to the appellants and hence appeal should be allowed and rehearing should be ordered.

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12 . In view of the above, the substantial question of law is answered in favour of the appellants.

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