AJIT KUMAR SINGH AND ORS. versus CHIRANJIBI LAL AND ORS.

Citation: [2002] 2 S.C.R. 607 · Decided: 20-03-2002 · Supreme Court of India · Bench: S.S.M. QUADRI · Disposal: Disposed off
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Judgment (excerpt)

AJIT KUMAR SINGH AND ORS. 
A 
v. 
CHIRANJIBI LAL AND ORS. 
MARCH 20, 2002 
[SYED SHAH MOHAMMED QUADRI AND S.N. VARIAVA, JJ.] 
B 
Code of Civil Procedure, 1908 : 
Order 41, Rules I I-sub-rules (1) and (2)-/nterpretation of-Absence 
of appellant and pleader-Power a/Court to dismiss appeal-Held, dismissal C 
postulated under Rule ti is dismissal for non-prosecution and not on merits. 
Constitution of India, 1950: 
Articles 136-Appeal by special leave-Landlord-tenant-Eviction 
proceedings-Finding of Appellate Court that there was landlord tenant D 
relationship-Disposal of appeal by Supreme Court-Held, remanding of case 
was not proper on facts. 
Evidence Act, 1872 : 
Section 116-Tenant-&toppel from denying the title of landlord 
E 
In legal proceedings initiated by respondent against the appellants under 
the Bihar (Lease, Rent and Eviction) Control Act, 1982 the High Court 
dismissed the second appeal of the appellants on merits in the absence of the 
appellants and their Advocate. The Review Petition filed by appellants was F 
also dismissed. The High Court interpreted the phrase "hearing the appellant 
or his pleader" in Rule 11(1) of Order 41 of the Code of Civil Procedure, 
1908 as to give adequate opportunity to the appellant or his counsel. As the 
counsel for the appellants did not appear even though they had adequate 
opportunity, the High Court held that it was open to it to deal with the Second 
Appeal on merits and therefore it dismissed the review petition. 
G 
In appeals to this Court on the questions whether (i) the High Court 
erred in interpreting Rule 11 (1) of Order 41 C.P.C. and (ii) the case should 
he remanded to the High Court for fresh disposal in accordance with law : 
Disposing the appeals, the Court 
607 
H 
608 
SUPREME COURT REPORTS 
[2002] 2 S.C.R. 
A 
HELD: 1. The High Court erroneously interpreted Rule 11(1) of Order 
41, CPC. The only course open to the High Court was to dismiss the appeal 
for non-prosecution in the absence of advocate for the appellants. It ought 
not to have considered the merits of the case to dismiss the Second Appeal. 
The dismissal postulated under sub-rule (2) of Rule 11 Order 41 is dismissal 
B for non-prosecution or dismissal for default as is commonly called. This import 
of Order 41Rule11 (1) and (2) is also fortified from a perusal of Rule 17 (1) 
and (2) read with the Explanation added by Act 104of1976 and provision of 
Rule 19 of Order 41 which provides for re-admission of appeal dismissed for 
default. [610-H; 611-A; 616-F] 
C 
Rafiq and Anr. v. Munshi Lal and Anr., [1981] 2 SCC 788 and Abdur 
Rahman and Ors. v. Athifa Begum and Ors., [1996) 6 SCC 62, referred to. 
2. Under Section 116 of the Evidence Act, a tenant is estopped from 
denying the title of the landlord. Having regard to the finding of the First 
Appellate Court that the relationship of landlord and t.enant existed between 
D the parties and that the possession of the premises was taken by the 
respondents long before filing of the appeal it is not a fit case to exercise 
jurisdiction under Article 136 of the Constitution to remand the case to the 
High Court for fresh disposal which would only prolong the litigation without 
any useful purpose. However, this judgment will not preclude the appellants 
E from claiming any rights, if they are otherwise entitled to, under the Bihar 
Land Reforms Act. [611-F-G; 612-A] 
Mst. Bibi Saveeda and Ors. v. State of Bihar and Ors., [1996] 9 SCC 516, 
referred to. 
F 
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2268-69 
G 
of 2002. 
From the Judgment and O,rder dated 2.2.2001 of the Patna High Court 
in M.J.C. No. 2463 of 2000. 
Akhilesh Kumar Pandey, for the Appellants. 
S.B. Sanyal, Manish Mohan, Anil Sahay and Amit Pawan for the 
Respondents. 
H 
The Judgment of the Court was delivered by 
( 
-
AJ!T KUMAR SINGH v. CHIRANJIBJ LAL [QUADRJ, J.] 
609 
SYED SHAH MOHAMMED QUADRI, J. Leave is granted. 
These appeals are from the judgments and orders of the High Court of 
Judicature at Patna dismissing appellants' Second Appeal No. 24 of 1996, on 
August 12, 1998 and the Review Petition in MJC No. 2463 of 2000 on 
February 2, 200 I. 
The appellants were the defendants in the suit in which their eviction 
was sought by the respondents-plaintiffs from an area of 4 7 Kari comprising 
of house and Golla situated in Plot Nos. 797 and 798 appertaining to khata 
A 
B 
No. 131 under Tauzi No. 414 Thana No. 239 in Arrah Municipal Area (for 
short, 'the suit premise
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