Tikeswar Sahoo Vs. Ambika Sahuani and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. p.k. misra, j.1. plaintiff no. 3 is the appellant against a reversing decision. in view of the order proposed to be passed hereafter, it is unnecessary to state in detail about the rival claims. suffice it to say that the plaintiffs had filed title suit no. 25/126 of 1980/86 for declaration of title and confirmation of possession and in the alternative, for recovery of possession of 'b' schedule property, which was decreed by the trial court by judgment dated 28-11-1987. title appeal no. 8/6 of 1988/89 was filed by the defendant no. 2. the said appeal was allowed ex parte against all the plaintiff-respondents including the present appellant who had been arrayed as respondent no. 3 in the said appeal. a civil revision was filed by the present appellant against the judgment of the lower appellate court, but the same was withdrawn for filing appropriate petition. subsequently, a petition was filed for setting for setting aside the ex parte decree of the lower appellate court, but the same was held to be barraed by limitation. thereafter the present second appeal has been filed.2. in the present appeal apart from challenging the legality of the judgment on merit, the appellant has contended that the appeal should be remanded to the lower appellate court for giving the present appellant an opportunity of being heard, as the lower appellate court had not given him that opportunity- it has been contended that though the appellant was present in person, he could not be heard as the appeal in the lower appellate court was not called on for hearing. the learned counsel for the appellant has submitted that the present appellant was present in person before the lower appellate court on 12-12-1988 and thereafter on the subsequent dates to which the appeal had been posted. it is further submitted that on 19-7-1989, the advocate who was appearing for some of the other respondents in the title appeal had reported no instruction, but the lower appellate court erroneously assumed that the advocate had, indeed, reported no instruction on behalf of all the respondents and proceeded to hear the appeal ex parte against all without calling on the case for hearing.3. a perusal of the, lower appellate court record indeed supports such a contention of the learned counsel for the appellant. the relevant portion of the order dated 19-7-1989 passed when the title appeal was heard ex parte is as follows:--'the advocate for the appellant files hazira. the advocate for the respondents file memo stating that they have no any (sic) further instruction in this appeal. no stops taken on behalf of the respondents. heard ex parte argument.....'this order does not indicate that the appeal was called on for hearing and rather shows that the lower appellate court was under the impression that all the respondents had appeared through advocates. it appears that the advocate, who had reported no instruction was, in fact, appearing for some other respondents in the title appeal and not for the present appellant, who was respondent no. 3 in the said appeal. even when an advocate reports no instruction and takes no further part in the hearing of a case, it is open to a party to contest the suit or appeal in person and, therefore, duty is cast on the court to call on the case for hearing so that any of the parties, if present, can appear in person and attend the court at the time of hearing. since the order sheet does not indicate that the appeal was, in fact, called on for hearing after the advocate who was appearing for some other respondents had reported no instruction, it is reasonable to accept the submission of the learned counsel for the appellant that, in fact, the appeal was not called on for hearing, thereby depriving the present appellant and opportunity of being heard in the matter. in such view of the matter, the fair course would be to remand the matter to the lower appellate court for fresh hearing so that all the parties including the present appellant can have an opportunity of being heard in the matter.4. the learned counsel for the respondents, however, relying upon the provisions of order 41, rule 17, code of civil procedure, specially sub-rule (2) of rule 17 has contended that there is no obligation on the part of the appellate court to call an appeal for hearing so far as a respondent is concerned though the appeal has to be called on so far as the appellant is concerned, and it is the duty of every respondent to remain present when such appeal is taken up for hearing on adjourned dates of hearing. the provisions of rule 17(1) and (2) of order 41 are extracted hereunder :--'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 appeal when the appeal is called on for bearing, the court may take 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) where the appellant appears and the respondent does not appear the appeal shall be heard ex parte.'the learned counsel contends that whereas sub-rule (1) contemplates that appeal can be dismissed for default if the appellant does not appear on the date fixed or on the adjourned date, sub-rule (2) which deals with setting a respondent ex parte does not specifically indicate that the appeal should be called on for hearing. such submission though ingenious in nature, cannot be accepted. the provisions of sub-rules (1) and (2) of rule 17 have to be read together. when an appeal is called on for hearing, if the appellant does not appear, the appellate court is empowered to dismiss the appeal. such dismissal is on default and not on merit as evident from the explanation to sub-rule (1). sub-rule (2) provides that where the appellant appears which evidently means, after the appeal is called on for hearing under sub-rule (1), the appellate court may decide the appeal ex parte even if the respondent does not appear. the contention of the learned counsel that since the appellant had appeared through his advocate on the date of hearing when the matter was taken up for hearing, there was no further necessity to call on the appeal for hearing cannot be accepted. it must be held that the lower appellate court was under an obligation to call on the matter for hearing even when the advocate for some of the respondents had reported no instruction and since such a couse had not been adopted, an illegality in the manner of disposal crept into the judgment and as such the matter is required to be remanded to the lower appellate court for fresh disposal on merit.5. the learned counsel for the respondents also submitted that since a civil revision had been filed and was withdrawn which accounts to dismissal, it must be held that there is constructive res judicata and the contention of the appellant that no opportunity was given by the lower appellate court must be deemed to have been decided against the appellant. the civil revision itself being against the final judgment was not maintainable and had been withdrawn. though, as is evident from the decision of the supreme court reported in air 1970 sc 1, (shankar ramshankar abhyankar v. krishnaji dattalraya bapat) that exercise of revisional power invoking revisional jurisdiction of a court is similar to invoking its appellate power, since the civil revision itself was not maintainable and was permitted to be withdrawn permitting the petitioner to file appropriate petition, it cannot be said that there has been any adjudication so far as the appellate court is concerned. if the self-some point would have been raised in a civil revision and would have been disposed of on merit, possibly it could have been contended that the points which were raised in civil revision and were negatived or were deemed to have been negatived, would operate as res judicata in any subsequent stage before the very same appellate court. the principle of merger may be attracted in such cases. however, where such revision itself was not maintainable and was withdrawn, such principle would not be attracted.6. the learned counsel for the respondents further contended that since the appeal had been disposed of ex pane, it was open in the respondent (present appellant) to agitate the question by filing an application under order, 41, rule 21, code of civil procedure, and the same having been filed and subsequently dismissed, the appellant should not be shown any further indulgence in this second appeal. as a matter of fact such an application was dismissed on the ground of limitation and not on merit. a petition which was barred by limitation was not a valid petition in the eye of law and it must be taken to be non-existent.though it was open to the present appellant to file an application under order 41, rule 21 to set aside the ex parte decree of the appellate court on any of the grounds indicated in order 41, rule 21, it cannot be said that he cannot approach the appellate court against the ultimate decree passed by the lower appellate court and challenge the validity of the judgment on the ground that mandatory provisions of precedural law had not been applied with. a party who does not avail of the remedy under order 41, rule 21 can challenge the validity of the ex parte decree on any ground available to him in law. section 105(1) of the code of civil procedure enables a party to set-forth any error, defect or irregularity in any order affecting the decisions of the case as a ground of objection in the memorandum of appeal. in the present case, the order setting all the respondents ex parte without calling on the appeal for hearing amounted to an error affecting the decision of the case which can be raised in the appeal from the ultimate decree. the remedies available under order 41, rule 21, code of civil procedure, and as envisaged under section 105 of the code are not mutually exclusive and some times may be overlapping. in such view of the matter, the contention raised by the learned counsel for the respondents is not accepted.7. it was faintly contended that in the absence of any hazira filed by the present appellant, it cannot be assumed that, in fact, the present appellant was present on the date when the appeal was taken up for hearing. as has been held in the decision of this court reported in 72 (1991) cit 566, sambari bewa v. banita bewa, filing of hazira specially in appeal is unknown to the procedure as envisaged in the code of civil procedure. at any rate, the filing of hazira is only for administrative convenience and when it is found that the court itself committed an error by not specifically calling on the case for hearing, possibly on the wrong assumption that the advocates appearing for all the respondents had reported no instruction, no party should be allowed to suffer for such error committed by a court of law. the principle of natural justice requires that sufficient opportunity should have been given to all the respondents, which has not been done in the present case.8. in the result, the second appeal is allowed, the judgment and decree of the lower appellate court are set aside and the matter is remanded to the lower appellate court for fresh disposal on merit. the contesting respondents in the present appeal had no fault in the matter, and as the matter has to the remanded at the instance of the plaintiff (respondent no. 3 in the lower appellate court), it is necessary that the suffering of defendant no. 2 (who was appellant in the lower appellate court) should be mitigated by award of cost. it is, therefore, directed that the aforesaid order of remand will be effective subject to payment of rs. 200/- (two hundred rupees) as cost to the advocate shri a.a. sahoo appearing for the respondents in this court within a period of four weeks from the date of the judgment in this appeal, failing which the order of remand shall not be operative. the appeal shall be disposed of by the lower appellate court expeditiously preferably within a period of six months from today.