THAKUR SUKHPAL SINGH versus THAKUR KALYAN SINGH

~ Parties will be ·at liberty to lead suoh further evidence on all mir.tters sent back for reconsidera· tion as they· think fit. In the .oiroumstances we order parties to bear their own costs. _

Appeal allowed.

llJrJB

Bfrla Couon Spg. &: W·vg. Mi1ls •• Woikmen'

Wtinchoo J.

THAKUR SUKHPAL~SINGH

"· THAKUR KAtYAN SINGH

(J. L. KAPUR, K. C. J?As GUPTA and RA.GHUBA.R DAYAL, JJ.)

App.al-Appellant appearing at hearing but not addressing court-Diemiesal for default-Legality of-1f Court bound to decide appeal on merits after perusal of record-Befueal of ad-journment-Interference by appellate court-Code of OivilProced• ure, 1908 (Art. V of 1908), 0. 41, rr. 16, 30, 31, 32.

The appellant's appeal was listed for hearing before the · High Court four times during the course of about year. On the last occasion the appellant"s counsel stated that he had no instructions. . The appellant who was present asked for an adjournment to arrange for the fees and to instruct another counsel. The adjournment was refused and upon the appellant expressing inability to address the court the High Court dismissed the appeal for default. The appellant contended that the High Court was bound to dispose of the '( appeal on merits ort the material before it.

Held, that. the High Court had the power to dismiss the appeal without considering .the merits. An appellate court was bound to consider only the submissions made by the appellant and if. no submissions were made by him, it was not bound to look tnto the record ; it could simply say that the appellant had not urged anything to show that the judgment and decree under appeal were wrong. · -

. Mt. Fakrunisa v. Moulvi lzarue, A. I. R. 1921 P. C. 55. rehed on. ·

Mathur11 Das v. Narain Das, I. L. R. 1940 All. 220, · approved.

1B61 M•:! B.

Thdur SuJt:,pal ~-inth v. Th kw lfo1'an Singh

11/wba• IJ.,.i J.

Sangram Singh v. E/.ctiml Tribunal. Kotah, Bhurey Lai BayrJ, (19o5) 2 S.C;.R. 1, rcfened to.

Baldw Prasad v. Kunrcar Bahadur, (1912) I.L.R. 35 All, 105; /:!yed Mo/,ammadi Husain v. Mt. Chandra, A.l.R. 1937 All. 284 ; and Barkat Ali v. Gujrat Municipality, A.l.R. 1937 Lah. 691, not approved.

Per Kapur and Dayal,JJ.-The High Court was right in refusing the application for adjournment. The appellant had ample time aud opporlunity to instruct hi.I counsel. It was within the di.creuon of the High Court to allow or not to :.Jlow the adjournment and the Supreme Court ordinarily did not interfere with such discrctiOnary orders.

Per Das Gupta, J.-The 'High Court was wrong in re-

fusing to grant the adjournment. Whtn the counsel engaged refused to address the court it\_was next to impossible for the client to engage another counsel on the •pot to argue the case and impossible for such couoscl to addres.s the Court. It is also not reasonable to expect the lay client 10 argue the appeal. Though an appellate court sh.mid not lightly inter· fc1 with the discretion exercised by court in rct-using prayer for adjournment it could interfere if the refusal was not in the interests of justice.

Cxv1L. APPELLATE JurusDICTION : Civil Appea.l No. 469 of 1960.

Appeal by speoia.J leave from the judgment

and decree dated January 6, 1966, of the former High Court of Madhya .Bharat, Gwalior, in Civil ]first Appeal No. 11 of 1950. ,

K. L. Gowin. P. W. Sahasrabudhe and A.G.

Ratnaparkhi, for the appellant.

K. L. Mehta. for the respondent No. I.

1962. May 2, The Judgment of Kapur and Dayal, JJ ., was delivered by Daya.I, J., Das Gupta., J., delivered a. separate Judgment.

RAOHUBAR DAYAL, J.-This appeal, by special

leave against the decree of the Madhya. Bharat High' Court dated January 5, 11166, raises the

2 s.c.R.

question whether the Appellate Court is bound to decide an appeal on merits on the basis of the mate-rial on record when the appellant appears at the hearing but does not address the Court.

The appellant's first appeal against the res·

pondents came up for hearing before the High Court on January 4, 1955. Mr. Mungre, who was the counsel for the appellant, stated that he had· no instructions to represent the appellant. The appe-llant did not deny this fact. His application for adjournment was rejected. The appellant w~s not prepared to address .the Court. The High Court therefore dismissed the appeal, relying on the deci· sion in M1dhura Das v. Narain Das ([1]), for default, with costs.

The contention rai•ed for the appellant is

fhat the High Court had. no jurisdiction to decide the appeal fixed for final hearing without consider-ing the proceedings of the Trial Court and the memorandum of appeal before it and that the right of the appellant to have the case decided on merits on the material before the Court was not dependent on his addressing the Court. Reliance is placed on the provisions of O.XLI, m. 30, 31 and 32, Code of Civil Procedure. We do not agree with this contention.

Order XLI. r. 16 of the Code provides the the r procedure to be followed by the appellate Court on the hearing of an appeal which has not been dis-missed under sub-r. (I) of r. II of that order. Rule 16 reads:

"(l). On the day fixed, or on any othi>r

day to which the hearing may be adjnurned, the appellant shall be heared in support of the appeal.

(I) J. L. R. I 40 All. 120: A. 1. R. I 40 All. 248.

lHI 7'.~2kur Sukhpal Si1g.~ v. T'iaku, Kaly•• Singh Raghu/Jor Da.'Wal J.

IHI

T""ku• Sulhp•I SilgA v, Tbolut Kol,.,. Sin1h -

736 Bl PREME OOURT REPOR'IS [lll63]

(2) The Court 1hall then, i( it does not dismies the appeal at once, hear the respon· dent 11,gainst the appeal, and in such case the appellant shall be entitled to reply."

It is clear from sub-r. (l) that it is the duty of Appellate Conrt to hear the appellant in support of the appeal. This however, does not mean that the appellate Court cannot decide the appeal if the appellant does not make his submissions to the Court showing tha.t the judgment and decree under appeal were wrong. The appellate Court is not to force the appellant to address it. It can, at best, afford him an opportunity to address it. If the appellant does not avail o( that opportunity, the apnellate Court can decide the appeal. Sub·r. (2) indicates that the appeal can be dismiesPd without. hearing the respondent. The appellate Court will do so if it was not satisfied that the judgment under appeal wa.s wrong.

Learned counsel for the appellant does not di8pute these propositions. His contention, how· ever, is tha.t even if the appellant does not addre88 the Court, the Court must go through the record and the judgment nnder appeal and come to its own conclusion about the correctness of the deoi· sion under appeal. Support (or this contention ie sought from the provisions of r. 32 of O.XLI which reads:

"The j11d1ZU1ent of the Appellate Court

shall be in writing and shall sta.te-

( a) the points for determination;

(b) the decision there on;

(c) the reasons for the decision; and,

(d) where the decree appealed from is reversed or varied, the relief to which the appellant ia entitled;

2 s.c.R.

and shall at the time that it is pronounced be 11igned and dated by the Judge or by the Judges concurring therein." ·

Thakur Sukhpal

. Singh •• fiiaku,. KtJ/yan Singh --

fiiaku,. KtJ/yan It is urged that the judgment of the appellate Coi:rt Singh has to sta.te the points for determination, the --decision thereon and the reasons for the decision, [Rag/UJhar ][Da_yal ][J. ]and these the appellate Court cannot do till it has gone through the record and considered the cn~ire matter on record including the judgment under appeal. The matters have to be in the judgment when points in dispute between the parties are raised before the appellate Court. If no such points are raised for· consideration, the appellate judgment cannot refer to the points for determina-tion in its judgment and, when there be no points raised for determination, there can be no decision thereon and no reasons for such decision. Such is the position when the· appellant does not address the .Court and does not submit anything against the decision of the Court below. The memorandum ()f appeal. does Cl)ntain the grounds of objection to the decree appealed from, without any argument or narative as laid down in sub-r.(2) of r. I, O.XLT. Such grounds cannot take the place of the points for determination contemplated by r. 31. Not unoften certain grounds of objection raised in the memorandum of appeal are not argued or passed at t.Jie hearing .and in that case such grounds can-not be taken to be the points for determina-tion and are rightly not disonssed in the judg-ment at all. It is for the . appellant to raise the points against the judgment appealed from. He has to submit reasons against its correctness. He cannot j•1st raise objeotions in his memorandum of appeal and leave it to the appellate Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the appellate

Th.ku• Sulhpal Singh •• ·r1aaiw Kolo,.n Sitrglt

738 SUPREME COU&T REPORTS (1963]

Court itself to find out that the points for determi· nation can be and then proceed to give decision on those points.

The Privy Council observed in Mt. Fakrunisa. v. M oulvi I zaTWJ ([1])

"In every appeal it is inenm bent upon the appellants to show reason why the judgment appealed from should be disturbed; there must be some balance in their fa'l'onr when all the circumstances are considered, to justify tho alteration of the judgment that stands. Their Lord-ships are unable to find that this duty ha.a been discharged."

With respect, we agree with this and hold that it is

the duty of the appellant to show that the judgment under appeal i~ erroneous for certain reasons and it is onlv after the appellant has shown this that the appellate Court would call upon the respondent to reply to the contention. It is only then that the judgment of the appellate Court can fully contain a11 the various matters mentioned in r. 31, O.XLI.

This Court observed in Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal, Baya ( '.) at page 8:

"Now code of procedure must be regar· dad as such: It is procedure, something designed to facilitate juetice and further its ends: . . . Too teohnical construction of sec-tions that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that jus-tice is done to both sides) lest the very means designed for the furtherance of justice be used to fruatrat&it."

(I) A.!.ll.1921P.C.55,56.

(2) (1955) 2 S.C.R. I.

2 s.c.R. SUPREME OOURT REPQRTS

_,{ The provisions of r.31 should therefore be reason-ably construed and should held to require the vari-ous particulars to be mentioned in the judgment r only when the appellaw has actually raised certain points for determina.tion by the appellate c.,urt, and not when no sriCh points have been raised as had been the case in the present in8tance when the appellant did not address the Court at all.

·y The provisions of r.30 of O.XLI support our construction ofr.31. · This rule reads:

"The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceeding, whether on appeal or in the Court from whose decree the appeal is preferred to which reference may be consi-dered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given ,to the parties or their plea~ers," .,.

It is to be noticed that this rule dnes not make it incumbent on the appellate Court to refer to any part of the proceedings in the Court from whose decree the appeal is preferred. The · appellate Court can refer, after hearing the parties and their pleaders, to any part of these proceedings to which reference be considered necessary. It is in the discretion of the appellate Court to refer to { the proceedings. It is competent to· pronounce judgment after hearing what the parties or theµ-pleaders submit to it for consideration. It follows therefore that if the appellant submits nothing for its consideration, the appellate Court can decidl'. the appeal without any reference to any proceed-ings Jf the Courts ·below and,. in doing so, it can simply say that the appellants have not urged anything which would tend to show that the judg-ment and decree under app~al were wrong.

Thakur Sukkpol Si nth v. Thakur Ka{Jan Singh ~-l"athllbar Dayal J

1gst

TAaevr SuUp•l Sin1h •• Tito<"" Ka{1an Sintb

Ravh·.Ju Dayal J.

SUPREME OOURT REPORTS [1963]

In this connection, reference may be made

to the provisions of s.423, Criminal Procedure Code, which provides the procedure to be followed by the appellate Court in disposing of criminal appeals. The relevant portion of its sub-s.(l) is:

"The Appellate Court shall then send for the record of the O&Be, if such record is not already in Court. Aft;t,r perusing such record, and hearing the appellant or hie plea· \... der, if he appears, and the Public Proseou· tor, if he appears, and, in case of an appeal under section 41 lA, sub-section (2). or sec· tion 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

The appellate Court is thus enjoined to pe88 the

final order in the appeal after it had perused the record and heard the appellant or his pleader and the Public Prosecutor. The perusal of the record is enjoined on the Court. The Court canIJot dispofe of the appeal merely after hearing the appellant or his pleader and the Public .Prosecut<·r. It has to per· use the record. In this respect, these provisions are different from the provisions of r.30, O.XLI, C.P.C. and the Legislature specifica.llj requires the peru-sal of the record by the appellate Court before deciding the appeal. It do"e not so provide in r.30, O.XLI, C.P.C.

The view that we take, also finds support

from the object whioh the Legislature probauly had in providing that the judgment must contain the matters mentioned in r.:ll. The object Bet>ms to be ihat the parties should know for what reasons the decision has gone against them and thereby be in position to decide whether they should go up

2 S.C.R. sur>REME COURT REPORTS

in appeal or revision against the judgment.. If

they do not know the deoiaion and the reasons therefore they cannot make up their :inind and, even if they have no intention to go up in appeal, they may not even be .. satisfied about the Court considering the matter for determination pronerly.

Another object can be that the second . appel-lant Court or the revision be in position to know why the Courts below came to certain conclusion. Such knowledge is undoubtedly of great assistance to the Court. If therefore, no contention is raised by the appellant in •the first appellate Court, no que~tion of raising any contention in the next appellate Court arises, and therefore, the necessity of writing complete judgment contemplated by r.31 does not arise.

Thia matter has been before few High Courts for decision ·and the expression of opinion had not been uniform.

In Baldeo Prasad v. K unwar Bahadur ([1]) of the two

appellants, one appeared at the date of h9aring and in the absence of his counsel, made an· application for adjournment which was rejected, and when asked to address the Cour11, failed to do so saying that he had nothing. to say, the appellate Court dismiased the appeal as it was not supported. The other appellant, Musamma.t Ram _Piari, applied for /" the restoration of the appeal. It was rejected. Two appeals were taken to the High Court and the High Court allowed the appeals and said :

«It is quite clear' that the learned District

Judge is wrong. To ask non:Jegal appellant to argue his case is asking for what is pract-i ca.Uy impossible. The application for adjourn; ment shows clearly and distinctly that he doi not wish to drop his appeal. He wiehed di (ll (1912) LLR. S5AU.1115.

1961 Tllakur Bukhpal S;,,gh •• Thakur KalJO• Singh BaU"ubar Dayal J •

1981 Tho,,,,, SuAfttal sa.,1 •• TA.W. ir.i,... SiiwA. &1"""4r DaJOl J.

press it .. The bare fact that ho could not argue

it did not justify the District Judge in dismiss-ing it. It was necessary for him under the circumstances to consider the grounds of appeal and to decide the ce.ae on the merits. This he has not done."

Thia may he good order on genera.I grounds. But

no attempt has been made to justify it on the be.sis of the provisions of the Code of Civil Procedure.

In Syed Mohammadi Husain v. Mt. Chandro ([1]) Nie.matullah J., ea.id :

"After refusing to adjourn the oa.ae, lower

appellate Court was bound to decide the appeal before it. The inability of the pleader to argue did not relieve the Court of the necessity of applying its mind to the fe.ots of the case and to decide it on its merits. Court is not entitled to dismiBB an appeal for 'want of prosecution' only because the e.ppel-laut, if he appears personally, tr his pleader, who represents him, is, for any reason, unable to argue the appeal. The Court should proceed in the manner le.id down by 0.41, rr. 30 and 31, Civil P.O ...... "

This was a. case in which the appeal was dismissed

for want of prosecution and the judgment therefore dee.It with the correctness of the appellate Court in dismissing the appeal for want of prosecution when the e.ppelle.nt, though present in Court, was unable to argue the appeal. This case, however, does not indicate how compliance can be me.de with the provisions of rr. 30 and 31 of 0. XLI when the appel-lant submits nothing to the Court for consideration. This ce.se we.a considered and over-ruled by the Division Bench of the Alle.habe.d High Court in

(I) AJ.R. 1937 AU. 284 0 285. 1937 All. LR. 43~.

2 S.C.R.

Mathura Das v. Narain Das(') on which the High

Court of Madhya Bharat relied. Thi~ case held that in such circumstances it was sufficient for the Court to pass an order of dismiss'l for default which did not necessarily mean that the appeal was dismissed for default of appearance but would mean that it was dismissed for default of ·proof. ·

In . Barkat Ali v. Gujrat Municipality ([2])

observations similar to those made in Ba7deo Prasad v. Kunwar Bahadur (•) were made. No reference was made to the provisions of the Code of Civil Proceedure in that connection. Rather, it appears from the following observation that the view was expressed on general grounds :

"The case is an important one from the

point of view of all -concerned and it is not desirable that case of this description should go practically iil default".

There is little support for this basis of decision iil

the Code of Civil Procedure and the Privy Council has pronounced against it. We find it difficult tc-uphold the view that even when no arguments art urged and no reasons put forward in arguments against the correctness of the decision appealed against, the appellate Court should peruse the record and find out for itself whether the judgment is right or wrong.

We therefore repel the contention for the

appellant that the High Court had to decide the appeal after going through the record of the case and the judgment of the Court below and must have complied with the provisions of r. 31 ofO.XLI, C.P.C., when the appellant did not address the Court.

Ill J.L.R. 1940, AIJ.220: A.J.R.1940, All 248. (2) I.P. ;~37 Joh. 691: (3) (J912J

(3) (J912J 1.L,. 35AU. UIS.

l96S l7iakur Sukltpa/ Sin(Jh v. Thakur Ka{7an Singh

Raghubar Da_,.J J

T71.ohr SukhfJOI SU.,A v. ThabrE-Uon Sitrfh

744 SUPREME OOURT REPORTS (1963]

Another point urged for the appellant is that tho High Court should not have rejected tho appel· !ant's application for adjournment of the case on January 4, l!J5a, It is matter within the discretion of the Court to allow an adjournment and such discretionary order is, ordinarily, not matter for the consideration of this Court in an appeal under Art. 136 of the Constitution. The petition for special leave did not mention this contention among the grounds of appeal. No special reasons C'Xist for our entering into this contention. The order under appeal gives adequate reasons for rejecting the application for adjournment.

The adjournment was sought on the ground

that the appellant could not arrange for the pay· ment of fees to his counsel aud to instruct him, as he got intimation of hearing of the appeal three days before the date of hearing. The application for adjournment does not form part of the record prepared in this Court. The learned Judges of the High Court were of opinion that the appellant had suffioient time to instruct his counsel and to make arrangements for making the.necessary payment tc him. Tho appeal was poHtt><l for hearing on Feb. 23, 1954, practically year b~fore the date of hearing on which the appellant was refused adjournment of the hearing. Between February 23, l!lS4' and January 4, 1955, the case was also put up for hear-ing on April 5, and May 4, 1954. In the circum· stances, the a.ppel111.nt ought to have completed his instruotions to the counsel prior to February 23, 1954. He failed to do so and failed to complete the instructions till January 4, 1955. In the circum· stances, we ·a.re of· opinion' that the exercise of discretion by the Court below was not in· any way oaprioions or arbitrary and therefore is not to be interfered with.

We therefore see no force in thiB api-1 and dillnill i' with ooRe.

' [.. ]

2 S.C.R. SUPREME COUkT REPORTS

DAS GuP~'.A, J.-Ou the main question of law >I. raised In this case, viz., whether the appellate Court is bound to decide an appeal on merits on the basis of the material on the record when the appellant appears at the hearing but does not address the Court, I agree, for the reasons mention-ed in the judgment of my learned brother Mr. Justice Raghubar Dayal J. that the answer must be in the negative. · ·

In my opinion, however, there is considerable

force in the further submission made on behalf of the appellant that the relusal of the appellant's prayer for adjournment on the January 4, 1955 has resulted in denial of justice to him.

It has been rightly str1>ssed on behalf of the

respondents that the conduct of the proceedings before court must necessarily be left to the court itself and an appellate court should not lightly · interfere with the discretion exercised by ('!ourt in refusing prayer for adjournment. To say, " however, that Court hearing an appeal shall in no circumstances interfere with an order made by the Court below refusing prayer for adjournment is to be the slave of formula. But you cannot do justice by formulee only.

The circum.stances under which the prayer

for adjournment was made in this case are peculiar. It appears that after numerous adjournments in the Y bearing of appeal before the High Court, some of which were given at the instance -of the appellant, some at the instance of the respondents and some were necessitated by the Court being otherwise engaged, the appeal finally came up for hearing before the High Court on Ja.nuary 4, 1955. On that date the Counsel of the present appellar t, who was also the appellant befor.e the High Court, informed the Court that he h!'d no instructions to represent the appellant. Apparently, the Counsel had not

17raku, Suk\pal Singh v. Thakur Kalytm Singh Da.Gupto J.

ThdutS~l >kgh v. TbaJ.ur IrilJJllA Sing1' Das Gupta J.

'7•6 SUPREME OOURT REPORTS [1963]

reoeived his fees and so was not prepared to argue the case on behalf of the appellant. The appellant who was present in pereon, appears to have admit-ted that he had not been able to pay the foes but he wanted some time so that he could make thA neoeB11ary arrangements. The High Court refused this prayer for tim•' and appears to have asked the appellant whether he would argue the case himself. The appellant expressed his inability to addreBll the Court.

It appears to me that when Collllsel engaged by party refuses to address the court on behalf of his client it is next to impossible for client to engage another Counsel on the spot to argue the case and ordinarily, impossible for the Counsel thus engaged to address the Court then and there. It is not also reasonable, in my opin-ion, to expect that lay client should be able to argue his appeal. To ask the appellant pereonal-ly, in the circumstances like these, to argue the appeal is to ask for the impossible. It appears to me to be neither fair nor just that when CoUlll!el suddenly withdraws from case, the lay client should be asked to argue the appeal himself. Justice, in my opinion, requires that in such case the client should be given some time-however short-to engage Counsel.

I am constrained to think that the action of

the High Court in refusing the appellant's prayer for time to engage counsel and to call on him to a.raue the case himself was not in the interests of juetioe.

In the peculiar circumstances of the oase, I

would therefore allow the appeal and remand the oase to the High Court for proper hearing of the appell.l before it.

BY CoUBT. In accordance with the .opinion of the majority, the appeal ie dlamissed with cost.a.