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Judgment
Manoj K. Tiwari, J.
This is tenant's petition, under Article 227 of the Constitution of India, against the judgment dated 30.01.2013 passed by Judge, Small Cause Court/Civil Judge (J.D.), Haridwar in S.C.C. Case No. 13 of 2006. Petitioner has also challenged the judgment dated 31.03.2017 passed by Vth Additional District Judge, Haridwar in Revision No. 42 of 2013.
The principal contention of the petitioner is that the revision filed by her under Section 25 of the Provincial Small Cause Courts Act was initially transferred from the court of District Judge, Haridwar to IInd Additional District Judge, Haridwar and subsequently, it was re-transferred to Vth Additional District Judge. However, no notice, as contemplated under Rule 89-A of General Rules (Civil), was issued to her. Therefore, petitioner could not appear before learned revisional court at the time of hearing of the revision and consequently, revision filed by her, was decided ex-parte against her on merit.
Petitioner has specifically pleaded in para 9 and 10 of the petition that no notice, under Rule 89-A of General Rules (Civil), was issued to her at the time of transfer of the case from one court to another, therefore, civil petition deserves to be allowed on this short point alone.
Hon'ble Supreme Court in the case of Ashwathamma Vs Lakshmamma & others reported in (2016) 16 SCC 615 has considered import of sub-Rule (1) of Rule 17 of Order 41 of C.P.C. and has held that nothing in the said provision should be construed as empowering appellate court to dismiss appeal on merits where appellant remained absent or was left unrepresented on date of hearing. Para 3 of the said judgment is extracted below:-
"3. In support of the said submission, he has commended us to the decision in Ghanshyam Dass Gupta v. Makhan Lal. In the said decision, it has been held as follows: (SCC pp. 747-48, paras 7-9)
"7. Rule 17(1) of Order 41 deals with the dismissal of appeal for appellant's default. The abovementioned provision, even without Explanation, if literally read, would clearly indicate that if the appellant does not appear when the appeal is called for hearing, the court has to dismiss the appeal. The provision does not postulate a situation where, the appeal has to be decided on merits, because possibility of allowing of the appeal is also there, if the appellant has a good case on merits; even if nobody had appeared for the appellant.
Prior to 1976, conflicting views were expressed by the different High Courts in the country as to the purport and meaning of sub-rule (1) of Rule 17 of Order 41 CPC. Some High Courts had taken the view3 that it was open to the appellate court to consider the appeal on merits, even though there was no appearance on behalf of the appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for appellant's default. Conflicting views raised by the various High Courts gave rise to more litigation. The legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, the Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was added by act 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained absent or left unrepresented on the day fixed for hearing the appeal. The reason for introduction of such an Explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for non-appearance. Such an opportunity is lost, if the Courts decide the appeal on merits in absence of the counsel for the appellant.
We may, in this connection, refer to a judgment of this Court in Abdur Rahman v. Athifa Begum Abdur Rahman v. Athifa Begum, 1996 6 SCC 62, wherein the scope of Explanation to Rule 17(1) of Order 41 CPC came up for consideration. While interpreting the said provision, this Court took the view that the High Court could not go into the merits of the case if there was no appearance on behalf of the appellant. We also endorse that view.""
Since revisional jurisdiction is akin to appellate jurisdiction, therefore, the principles, which are applicable to appeal would also apply to revision filed under Section 115 of C.P.C. or Section 25 of Provincial Small Cause Courts Act.
Accordingly, impugned judgment dated 31.03.2017 is hereby quashed and the matter is remitted back to the revisional court for deciding the revision afresh, in accordance with law.
Since this order has been passed without issuing notice to the respondents, in view of the settled position as discussed above, however, they shall be at liberty to seek recall of this order, if they feel aggrieved by this order.