Remanded

Abu Faizal v. Nizarudeen

Kerala HC23 Oct 2018CRP/437/2017

Case brief

AI extract

What is this about?

The High Court held that it is impermissible to decide an appeal on merits in the absence of the appellant or counsel. The appellant's grievance regarding dismissal for default under Order XLI Rule 17 CPC was accepted. The impugned judgment was set aside and the matter was remanded to the First Appellate Court for proper disposal.

What did the court decide?

The impugned judgment was set aside; the matter was remanded to the First Appellate Court for reconsideration in accordance with law.

Abu Faizal Vs Nizarudeen — Civil Procedure and Limitation | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE P.SOMARAJAN

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TUESDAY, THE 23RD DAY OF OCTOBER 2018/1ST KARTHIKA, 1940

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CRP.No.437 of 2017

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AGAINST THE COMMON JUDGMENT DATED 23.3.2017 IN CMA NOS.82 AND 83/2015 of THE COURT OF THE III ADDL.DISTRICT JUDGE, KOLLAM

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AGAINST THE ORDER IN I.A.NO.3153/2014 IN OS NO.158/2014 of THE MUNSIFF'S COURT, KOTTARAKKARA, DATED 20-08-2014.

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REVISION PETITIONER/APPELLANT/RESPONDENT/DEFENDANT:

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ABU FAIZAL, AGED 40 YEARS, S/O.KASIM KUNJU,SECRETARY, PURATHUR GRAMA PANCHAYATH, MALAPPURAM DISTRICT,FROM P.K.HOUSE, SWAMIMUKKU,PULIPPARA P.O., KUMMIL VILLAGE,KOTTARAKKARA TALUK, (P.K.HOUSE, ANAPPARA, MANIYANMUKKU, KADAKKAL P.O., KUMMIL MURI, KUMMIL VILLAGE, KOTTARAKKARA TALUK).

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BY ADVS.SRI.MANOJ RAMASWAMY SMT.C.H.ABEENA SMT.JOLIMA GEORGE SMT.SANJANA R.NAIR

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RESPONDENT/RESPONDENT/PETITIONER/PLAINTIFF:

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NIZARUDEEN AGED 58 YEARS,S/O MUHAMMED MOIDEEN, ANI COTTAGE, VALAVIPACHA,CHIRAVOOR, CHITHARA VILLAGE, KOTTARAKKARA TALUK, PIN-691 506.

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BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR SRI.JOSON MANAVALAN SRI.K.JOHN MATHAI SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.P.GOPINATH

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23.10.2018,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

C.R.P.No.437 of 2017

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O R D E R

Against the common judgment dated 23.3.2017 in C.M.A.Nos.82 of 2015 and 83 of 2015, on the file

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of the Court of the Additional District Judge III, Kollam, the appellant came up with this Revision.

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It is against the order dated 20.8.2014 in

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I.A.Nos.3153 of 2014 and 3031 of 2014 in O.S.No.158 of 2014, of the Munsiff's Court,

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Kottarakkara, the defendant filed C.M.A.Nos.82 of 2015 and 83 of 2015 before the Additional District

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Judge III, Kollam. But the Appellate Court without hearing the appellant proceeded with the

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appeal and rendered a judgment on merits, which is under challenge.

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The grievance of the petitioner is that

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when there is absence of the counsel for the

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appellant or the appellant, the only option

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available to the Appellate Court is to dismiss the appeal for default as mandated under Order XLI

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C.R.P.No.437 of 2017

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Rule 17 of the Code of Civil Procedure. It is not

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at all advisable to hear the appeal on merits in the absence of the appellant or his counsel. What is actually done by the First Appellate Court in disposing of the appeals on merits without hearing the appellant or his counsel cannot be sustained.

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It is true that the appellant remained

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absent for five consecutive posting dates, but that itself will not empower the First Appellate Court to decide the appeal on merits by hearing the respondent alone. The only option available to the First Appellate Court is to dismiss the appeal for default in accordance with Order XLI Rule 17 CPC. The legal position is well settled as early as in the year 1996 in Abdur Rahman and

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Others v. Athifa Begum and Others ((1996) 6 SCC 62) .

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Hence, the judgment under challenge is liable to be set aside. I do so. The matter is remanded back to the First Appellate Court for proper disposal in accordance with law. Both parties

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C.R.P.No.437 of 2017

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shall appear before the First Appellate Court on 9.11.2018. The appeal shall be heard and disposed of within a time schedule of one month from the date of receipt of a copy of this order. It is made clear that in the absence of the appellant or his counsel, the only recourse available to the First Appellate Court is to dismiss the appeals for default under Order XLI Rule 17 CPC. No order as to costs.

Sd/

P.SOMARAJAN

JUDGE

ahz/

Abu Faizal v. Nizarudeen

Case brief

What is this about?

What did the court decide?

Abu Faizal v. Nizarudeen

Case brief

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