Hemam Thambaltombi Devi and others vs Moirangthem Ibonaha Singh and another

T.N.R. Tirumalpad, J.C.

This is a petition filed against the order of the District Judge, dated 4-12-1961 dismissing Civil Appeal Case No. 82 of 1961 filed by the petitioners for want of prosecution on the ground that they did not file the necessary requisites. What happened was that on the filing of the appeal, it was taken on file and numbered as Civil Appeal No. 82 of 1961 and on 15-11-1961, the learned District Judge ordered ''issue of notice'' to the respondents for 5-2-1962 and directed that requisites will be supplied within a week from 15-11-5961. The process fee for issuing notice had already been supplied by the petitioners along with the appeal memorandum. What remained was to furnish the summons forma as required under Rule 70 of the General Rules (Civil). The summons forms ought to have been supplied along with the memorandum of appeal as required under the said Rule. The appeal memorandum should not have been taken on the file by the Office of the District Judge when the summons forms duly filled up were not filed along with the memorandum of appeal. It is for the Presiding Officers of the lower Courts to see that Rule 70 is observed and that summons forms duly filled up are filed along with the plaint, memorandum of appeal or application and the case should not be taken on file unless the summons forms are also filed along with the plaint, memorandum of appeal or application.

What happened in the present case was that after admitting the appeal, the Court directed the petitioners to file the summons forms as requisites. That also is permitted under Rule 70. But the normal rule is that they must be filed along with the memorandum of appeal. The petitioners did not file the summons forms duly filled up within one week from 15-11-1961 as ordered by the Court. This appears to have been brought to the notice of the Court by the Office on 4-12-1961, though the appeal itself was posted for hearing only to 5-2-1962. The learned District Judge thereupon passed an order dismissing the appeal for want of prosecution, evidently without the knowledge of the petitioners and with out giving any further opportunity to them to file the requisites. There was enough time even on 4-12-1961 for issuing the summons as the date of hearing was only 5-2-1962 and an opportunity should have been given to the petitioners to file the requisites. The District Judge was wrong in taking up the appeal on 4-12-61 to which date it had not been posted for hearing and in dismissing the appeal behind the back of the petitioners without giving an opportunity for them to hear what they had to say.

There is no provision in the CPC or in the General Rules (Civil) for dismissing an appeal for failure to supply the requisites within the time fixed by the Court. At best, the Court can act only u/s 151 C.P.C. to prevent abuse of the process of the Court. But before passing any order u/s 151 C.P.C. the elementary principle that a party should be heard before an adverse order is passed against him should have been observed by the District Judge. There is also nothing to show that there has been any abuse of process of the Court in the failure to submit the requisites within a week. Even Order 41 Rule 18 C.P.C. gives the power to the appellate Court to dismiss an appeal only on the day fixed for hearing or on any other day to which the hearing may be adjourned and that too if the notice to the respondent was not served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the cost of serving the notice. Here, the process fee had already been deposited along with the memorandum of appeal. Thus, Order 41 Rule 18 will not apply. Even under Order 41 Rule 18 , the Court has to wait for the day of hearing and to see whether the respondent appears when the appeal is called on for hearing and if he appears no order can be passed dismissing the appeal. It follows that for failure to supply the summons forms within the date fixed, the Court cannot take up the appeal before the date of hearing fixed and cannot dismiss the appeal without hearing the party and behind his back. It is an order passed clearly without jurisdiction. The civil revision is therefore allowed and the order dismissing the appeal is set aside and the District Judge is directed to restore the appeal to file and dispose it of according to law. No costs.