Heard Sri B.N. Agrawal, learned counsel for the petitioners and Sri Chowdhry Subhash Kumar, learned counsel for the respondents.
Petitioners are aggrieved by the judgment and order dated 10.5.2006 passed by the prescribed authority allowing the release application of the respondent No.1/landlord, now represented by his heirs and legal representatives, the appellate judgment and order dated 11.5.2007 dismissing the appeal arising there from and the order dated 22.1.2008 rejecting the application of the petitioners for recalling the appellate judgment and order.
In brief, the facts are that the respondent No.1/landlord applied for releasing the house in dispute under Section 21(1)(a) of the U.P. Act No.13 of 1972. The release application was allowed vide judgment and order dated 10.5.2006. The petitioners filed appeal under Section 22 of the Act and the same was dismissed on 11.5.2007. Petitioners thereafter applied for recall of the above judgment and order on the ground that as none of their counsel were present the appeal could not have been decided on merit and at best should have been dismissed in default. The application was rejected on 22.1.2008.
At the very outset it would be important to point out that in view of Section 34 of the Act read with Rule 22 of the Rules framed under the Act, the prescribed authority and the appellate authority have the same powers as are vested in the civil court under the Code of Civil Procedure in respect of dismissal of an application, appeal or revision for default and to restore them for sufficient cause.
In view of the above, the provisions of Order 41 Rule 17 and Rule 19 C.P.C. laying down the procedure for dismissal of appeal in default and for its re-admission/restoration are applicable to appeals arising in relation to disputes under the Act.
The application of the petitioners for recall of the judgment and order of the appellate court dated 11.5.2007 was essentially an application for restoration of the appeal under Order 41 Rule 19 C.P.C. The order of refusal passed thereon is appealable under Order 43 Rule 1(t) C.P.C. but the provisions of Order 43 have not been specifically made applicable to proceedings under the Act. Therefore, the preliminary objection that the order dated 22.1.2008 cannot be assailed by invoking writ jurisdiction as there is an alternative remedy to challenge it under Order 43 Rule 1(t) C.P.C. is not sustainable.
Moreover, dismissal of writ petition on the ground of alternative statutory remedy is not an absolute thumb rule rather a matter of procedure. It would not apply where a petition has been entertained and is long pending after exchange of affidavits, more particularly, when other orders have also been impugned which are amenable only to writ jurisdiction.
There is no dispute that after the release application was decided by the prescribed authority, the petitioners had filed the appeal through their counsel Sri Rajendra Narain Agnihotri. The appeal was fixed for hearing on 25.4.2007. On the said date petitioners filed Vakalatnama of a new counsel Sri Raja and sought an adjournment. The appeal was adjourned to 7.5.2007. On the said date when the appeal was called out, the earlier counsel of the petitioners Sri Rajendra Narain Agnihotri who was present in the court in connection with some other case, informed that the petitioners have taken away the file from him and that he has no instructions in the matter. The appellate court heard the arguments of counsel of the respondent No.1/landlord and fixed 10.5.2007 for the arguments of counsel for the petitioner on which date also no one appeared to argue the appeal for the petitioners. Accordingly, the appeal was dismissed on the next date vide judgment and order dated 11.5.2007 on merits.
It is in the above circumstances, it was argued that as none has appeared for the petitioners the appellate court had no authority of law to decide the appeal on merits in view of Order 41 Rule 17 C.P.C.
Rule 17 of Order 41 C.P.C. which as stated earlier is applicable to proceedings under the Act, is quoted below:
"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.
Explanation. - Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.
(2) Hearing appeal ex parte. - Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
A reading of the above rule demonstrates that if on the date fixed for hearing of the appeal, the appellant does not appear the court may make an order for dismissing the appeal but it shall not empower the court to dismiss the appeal on merits.
In view of the above provision, apparently it appears that the court had exceeded its jurisdiction in deciding the appeal on merits.
Sri Chowdhry appearing for the respondent/landlords contended that it is not a case of non-appearance of the counsel for the petitioners. The counsel was very much present but he had refused to argue. Therefore, Rule 17 of Order 41 would not debar the court from deciding/dismissing the appeal on merits.
It is true that the petitioners had engaged a new counsel without taking leave of the court or withdrawing the Vakalatnama of the previous counsel. Order 3 Rule 4(2) C.P.C. provides that every appointment of a counsel shall be deemed to be in force unless it is determined with the leave of the court.
A Division Bench of this Court in Bijli Cotton Mills (Pvt.) Ltd. Vs. M/s. Chhaganmal Bastimal AIR 1982 Allahabad 183 interpreting the above provision held that every appointment of an Advocate will be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court.
The aforesaid decision has been followed by another Division Bench in 2007 (3) ALJ 116 Smt. Veena Agawal @ Veena Garg Vs. M/s. Unjha Ayurvedic Pharmacy and others.
Even though the provisions of Order 3 C.P.C. are not strictly applicable to proceedings under the Act but applying the principle laid down therein, it is held that the previous counsel of the petitioners continued to be their counsel as no leave of the court for withdrawing his Vakalatnama was taken nor any signed document terminating his power was filed before the Court.
On the date fixed, the previous counsel of the petitioners was present in the court and pleaded no instructions whereas the new counsel failed to turn up and no explanation for his absence was submitted.
It has been settled in Gajrani Vs. Ram Rati AIR 1965 Alld. 547 by a Division Bench of this Court that mere physical presence of the pleader does not make out a case of appellant being present for the purposes of Order 41 Rule 17 C.P.C. when the pleader informs the court that he has no instructions.
In Badri Pandey Vs. Ram Chandra and others 1975 ALJ 659 another Division Bench of this Court held that appearance merely for the purpose of seeking an adjournment is no "appearance" at the hearing of the appeal.
His Lordship of this Court in Smt. Shamaun Nisa Begum etc. Vs. Hindustan Commercial Bank of India Ltd. and others ARC 1987 (2) 432 in a case where counsel for the appellants though present in the court did not argue the appeal when the case was called out for hearing and pleaded that he has no instructions to argue the appeal, the order dismissing the appeal was held to be an order under Rule 17 of Order 41 C.P.C. i.e. an order dismissing the appeal in default against which an application under Order 41 Rule 19 C.P.C. lies.
In one another case Sita Ram Vs. A.D.J. 1983 AWC 767 counsel made an endorsement on the order sheet that he had ceased to be a counsel but the suit was decreed. It was held that the decree was an ex parte decree and an application under Order 9 Rule 13 C.P.C. was maintainable.
In The Manager, D.A.V. Higher Secondary School Vs. Civil Judge, Rampur and others 1983 AWC 762 it was held that when counsel states in court that he has no instructions on behalf of their client and withdraws from the case, then it is not a situation where it can be said that the client is deemed to be present through his counsel.
In other words, mere presence of the counsel when the appeal is taken up for hearing is not sufficient to hold that the appellant or their counsel appeared for the purposes of hearing of the appeal so as to enable the court to proceed and decide the appeal on merits. The presence of the counsel in such a situation would merely be a physical presence but not "appearance" within the meaning of Rule 17 of Order 41 C.P.C.
In view of the above, merely for the reason that the previous counsel of the petitioners was present in the court on the date fixed and had pleaded no instructions and the other counsel was not present, there was no appearance of any counsel on behalf of the petitioners. Therefore, the appeal ought to have been dismissed in default rather than on merits.
In Ghanshyam Das Gupta Vs. Makhan Lal 2013 (1) ARC 152 the apex Court while considering the provisions of Rule 17 of Order 41 C.P.C., relying upon (1996) 6 SCC 62 Abdur Rahman and others Vs. Athifa Begum and others, held that the High Court could not go into merit of the case if there was no appearance on behalf of the appellant.
In view of the aforesaid facts and circumstances and the legal position which has been spelled out above, in my opinion, the appellate court exceeded its jurisdiction in deciding the appeal on merits in the absence of either of the counsel for the appellant/petitioners. Accordingly, the impugned orders dated 10.5.2006 and 11.5.2007 are quashed and the matter is remanded to the appellate court for re-deciding the appeal in accordance with law, as expeditiously as possible, preferably within a period of six months from the date of presentation of certified copy of this order, by fixing short dates in quick succession and curtailing all unnecessary adjournments. In case adjournment becomes inevitable, it shall be allowed by imposing cost of at least Rs.500/- per adjournment.
The writ petition is allowed as above.
Order Date :- 5.8.2014 Brijesh