Full Judgment
1. This second appeal is focussed by the defendant animadverting upon the judgment and decree dated 21.12.2010 made in A.S.No.1 of 2010 on the file of the learned Subordinate Judge, Ambasamudram, in reversing the judgment and decree dated 09.11.2009 made in O.S.No.216 of 2006 on the file of the learned Additional District Munsif, Ambasamudram.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A re'sume' of facts absolutely necessary and germane for the disposal of this second appeal would run thus:
The plaintiff who is the respondent herein filed the suit for injunction in respect of the immovable property described in the schedule of the plaint.
4. The defendant/appellant herein filed the written statement resisting the suit.
5. Whereupon the trial Court framed the relevant issues. However, there was no participation in the trial on behalf of the defendant.
6. During trial, P.W.1 and P.W.2 were examined and Ex.A.1 was marked on the side of the plaintiff. Neither oral nor documentary evidence was let in on the side of the defendant.
7. Whereupon the trial Court considering the merit of the matter, dismissed the suit itself even though the defendant did not contest the case; as against which the plaintiff preferred the appeal before the first appellate Court. There also, the defendant/appellant herein remained ex-parte.
8. The first appellate Court on hearing the plaintiff, reversed the judgment and decree of the trial Court and decreed the suit as prayed for.
9. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the present second appeal has been filed on various grounds and also suggesting the following substantial questions of law: (a) Whether the plaintiff is entitled to a Decree of Injunction without proving his possession?
(b) Whether the First Appellate Court is correct in allowing the suit based only on the fault of the defendant in not putting him for examination, when the plaintiff has failed to prove his case? (c) Whether the reasons given by the First Appellate Court in setting aside the judgment and decree of the Learned Trial Judge are correct and sustainable in Law? (extracted as such)
10. At the hearing, the learned Counsel for the defendant, without mincing words, would submit that the second appeal was necessitated to be filed by the defendant, because the first appellate Court passed the judgment on merits even though the defendant did not appear and that there was no possibility of getting the said judgment set aside as it is one passed on merits.
11. At this juncture, this Court intervened and queried the learned Counsel for the defendant/appellant herein as to whether the defendant wants to participate before the first appellate Court in resisting the first appeal, for which the learned Counsel for the defendant would submit that the defendant is very much interested in contesting the appeal before the first appellate Court, but the first appellate Court passed the judgment on merits.
12. Heard the learned Counsel for the plaintiff also, who would in all fairness submit that the judgment passed by the first appellate Court is an ex- parte one only.
13. I would like to observe and give my verdict on that point that what the first appellate Court passed is only an ex-parte judgment. Without hearing the respondent in an appeal, for whatever reason, the judgment is passed by any Court, it can only be taken as an ex-parte one.
14. Order XLI Rule 17 of the Code of Civil Procedure, is extracted hereunder for ready reference:
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. (emphasis supplied)
15. A mere poring over and perusal of the aforesaid provision would axiomatically and pellucidly make the point clear that if the respondent does not participate in arguing the appeal and despite that, if the Court hears the Counsel for the appellant and passes a judgment, it could only be taken as an ex-parte judgment.
16. As such, the perusal of the judgment of the first appellate Court would display and convey that it is a judgment passed ex-parte.
17. In such a case, I would like to dismiss this second appeal with the observation that it is open for the appellant/defendant to file necessary application before the first appellate Court for re-hearing the appeal by way of giving due opportunity to the defendant to put forth his case.
18. I would also make it clear that the defendant/ appellant herein is at liberty to get excluded the time taken for prosecuting this second appeal from 29.07.2011 till this date and also the time that would be taken for obtaining a certified copy of this judgment and decree.
19. I would also like to refer to the decision of the Honourable Apex Court in Asit Kumar Kar v. State of West Bengal and others reported in (2009) 2 Supreme Court Cases 703. An excerpt from it, would run thus:
4. It is a basic principle of justice that no adverse orders should be passed against a party without hearing him. This is the fundamental principle of natural justice and it is a basic canon of jurisprudence. In the seven-Judge Constitution Bench of this Court in A.R.Antulay v. R.S.Nayak [(1988) 2 SCC 602 :1988 SCC (Cri) 372.], it has been observed in para 55 thereof: 55. ... So also the violation of the principles natural justice renders the act a nullity.
20. As such, a perusal of the aforesaid decision of the Honourable Apex Court would indicate and drive home the point that as per the principle 'audi alteram partem', due opportunity should be given to the other side and that is virtually the bedrock of objectivity in rendering justice. Keeping in mind the aforesaid dictum of the Honourable Apex Court, the first appellate Court shall deal with the applications for re-hearing the appeal. Consequently, the connected Miscellaneous Petition is dismissed. No costs.