R. Muthusami vs Abdul Razack, Executive Trustee

S.S. Subramani, J.—Defendant in O.S. No. 873 of 1978, on the file of the Second Additional District Munsif''s Court, Tiruchirapalli, is the

appellant.

The suit filed by the plaintiff is one for recovery of the building from the defendant. The title over the property is admitted. The claim of the

appellant is that he is entitled to the benefits of Section 9 of the City Tenants Protection Act.

He also filed an application to permit him to purchase the property, as I.A. No. 1826 of 1989 in the same suit. The interim application as well as

the suit was taken up together and evidence was let in the application.

Trial Court, after elaborately taking evidence, came to the conclusion that the defendant is not entitled to the City Tenants Protection Act. It

further found that the building belonged to the plaintiff. Since nothing remained to be decided in the suit, dismissing the interim application, a decree

was granted in favour of the defendant.

Against the judgment, plaintiff preferred A.S. No. 134 of 1993 against the decree and against the Order dismissing his interim application,

preferred C.M.A. No. 37 of 1993, on the file of the First Additional Subordinate Judge''s Court, Tiruchirapalli. The lower appellate Court also

dismissed the appeals, and two months time was granted for the appellant to surrender possession of the property. It is against the concurrent

judgments of both the Courts below, defendant has preferred this second appeal as well as the civil revision petition.

At the time of admission of the second appeal, the following substantial question of law was raised for consideration:-

Whether the lower appellate Court is correct in law in deciding the appeal on merits, when the appellant''s counsel had reported. ''No instructions''

in view of the Explanation under Order 41, Rule 17 added by the Amending Act 104 of 1976?

The only point that was stressed by learned counsel for the appellant that the procedure adopted by the lower appellate Court is against the

provisions of Order 41, Rule 17, C.P.C.

According to learned counsel, his client was not allowed to argue his case and, therefore, instead of disposing of the appeal on merits, its power

is only to dismiss the appeal for default. By deciding the appeal on merits, learned counsel submitted that a decision has been rendered against him

without permitting him to argue the case, which is against the principles of natural justice.

Before countenancing the said argument, let us see as to what happened before the lower appellate Court.

It is better to extract the judgment of the lower appellate court in order to appreciate as to what happened before it. Paragraphs 12 to 17 give

a vivid picture of what transpired before the lower appellate Court.

The statement recorded therein which 1 have extracted in para 13 hereunder is not challenged.

Order 41, Rule 17, C.P.C, after it was amended in 1976, reads as follows:-

17.(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant doesn''t appear when the appeal is

called on for hearing, the Court may make an order that the appeal be dismissed.

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

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

Paragraphs 12 to 17 of the lower appellate court''s judgment read thus:

This appeal suit as well as the connected civil miscellaneous appeal were listed for the hearing on 10.1.1995. On the said appointed day, the

learned counsel for the appellant/defendant argued that what was leased out to the defendant is only a site, the superstructure belongs to the

defendant. He had spent a huge amount and improved it. There are ample oral evidence and documentary evidence in support of that, on record

and in this way, he would assail the findings on the Court below. Adjournment was prayed for, to continue his further arguments. I have granted

him time. The matter was adjourned to 18.1.1995 On 18.1.1995, on the side of the appellant, adjournment was prayed for. Still resistance for

such a prayer came from Janab Abdul Kareem, the learned counsel for the plaintiff. Then, with the consent of both, the matter was posted to

20.1.1995 for hearing the further arguments of the appellant''s counsel.

On 20.1.1995 also, the appellant''s counsel expressed his inclination to report ''No instruction''. The learned counsel for the respondent submitted,

that appellant has already argued in part; thereafter even the appellant''s counsel reports no instructions; the appeal suit must proceed and it has to

be heard and disposed of on merits. It would be otherwise, if no arguments at all has been advanced by the appellant. At this juncture, I have

asked the learned counsel for the appellant Mr. V.Swaminathan, that I will post the matter on 24.1.1995 and let him complete his arguments so

that the respondent''s counsel may begin his arguments and I adjourned the matter accordingly.

On 24.1.1995, Mr.V.Swaminathan, the learned counsel for other appellant expressed his inclination to report ''No instructions'' and that he is

helpless as the defendant is not co-operative. The learned counsel having said so, there is no point in compelling him to complete the argument. He

was allowed to make an endorsement to that effect in the vakalat. Then I turned towards the appellant, called him, but no response, So, he was

called absent.

Already, part of the argument on the side of the appellant is available to us. I have decided to take that into account and also the grounds of appeal

and the arguments of the respondents, adjudicate the matter with the said oral and documentary evidence on record. I directed the learned counsel

for the respondent to submit his argument. He obliged.

It is not disputed that the appeal was filed in 1993, and various opportunities were given to the appellant to argue his case. In fact we find that

the appeal itself was listed for hearing on 10.1.1996. On that date, learned counsel for the appellant argued his case in part, and on his request,

and with consent, the same was adjourned to 18.1.1995. By agreeing to argue on 18.1. 1995, a duty was cast on the Counsel to present his case

on that date, especially when the same was treated as part-heard. On that date, appellant''s counsel again sought for time. With consent, again it

was adjourned to 20.1.1995.

After taking a benefit of the adjournment to 20.1.1995, learned counsel for the appellant submitted before the lower appellate Court that he

can only express ''No instructions'' and refused to argue. Even on that date, he did not give up his engagement. The matter was again adjourned to

24.1.1995. On that date, the appellant''s counsel endorsed that he has ''No Instructions.'' It was thereafter, the lower appellate Court heard the

arguments of learned counsel for the respondent and disposed of the appeal.

From a reading of the judgment of the lower appellate Court, it is clear that it heard the appellant in part. Once the Court heard the matter in

part, there is a duty cast on the Court to enter a finding. From paragraph 12 of the judgment, it is clear that the main point to be decided in that

case was argued by the counsel When the matter is treated as part-heard, learned counsel for the appellant should not have withdrawn his

appearance from the case, after getting adjournment. The conduct on his part is deprecated.

When a matter is heard in part and a Counsel also agrees that he will present himself to argue the matter on the adjourned date, his absence on

that date will have to be countenanced thereafter. In such a case, the provisions of Order 41, Rule 17, C.P.C. may not have any application.

In Anthony v. Rita, 1980 K.L.T. 203, Khalid, J., as he then was, interpreted Order 41. Rule 17, C.P.C. as follows:-

...What does the expression ""the appellant does not appear"" occurring in Rule 17 mean. This expression applies only when the appeal is called on

for hearing; that is, not when it is called for being postponed or for disposing of some interlocutory or incidental applications. Appearance in an

appeal means effective appearance for prosecution of the appeal. Appearance by an Advocate for a party is an effective appearance. When an

Advocate appears for a party when the appeal is called on for hearing or when a representation is made on his behalf at that time, there is effective

appearance for the party. When a request is made by the Advocate or by some one on his behalf for the matter to be passed over and the Court

accedes to such a request, the Court does so as a matter of accommodation noting that the party is present through the Advocate for hearing the

appeal. The Court hears the Advocate when he turns up. This situation does not attract Rule 17. If the Advocate not turn up, the Court is perfectly

within its rights to hear the appeal on merits and pass appropriate orders. Otherwise, the Court will be helpless in getting disposal of cases listed

for hearing (Italics supplied)

According to me, the same principle applies to the facts of this case also. When the matter was being treated as part-heard and the advocate

agrees to argue the matter further on the adjourned date, his prayer for adjournment is granted, even though the grant of adjournment was opposed

by learned counsel on the other side, and the benefit of adjournment is also availed by the counsel. Thereafter, if he does not argue the matter not

he adjourned date, it is not a case of failure of appearance as contemplated under Order 41, Rule 17 C.P.C. From the statements recorded in the

judgment of the lower appellate Court, it is clear that what the appellant wanted was only a protraction of the proceedings.

On merits, learned counsel for the appellant was not in a position to challenge the findings of the Court below. We find from various exhibits

filed in the case that the building belongs to the plaintiff, and it was a building tenancy. That finding of fact cannot be re-appreciated. In fact, no

attempt was also made to canvass its correctness.

According to me, the contention of the appellant has to be ignored on account of a subsequent also. Plaintiff in this case is a Wakf and the

property belonged to the Mosque. In respect of all religious and charitable institutions, in view of the Amending Act 2 of 1996, the provisions of

City Tenants Protection Act have been exempted. Even on merits, the appellant can only be non-suited.

In the result, I do not find any merit in this appeal, or in the revision filed against the Order in the LA. filed by the appellant. Both the second

appeal and civil revision petition are dismissed with costs.