K.A. Abdul Gafoor
1. This is an appeal by the plaintiffs. The suit was dismissed. His appeal was also dismissed at the admission stage under sub-rule (1) of Rule 11 of Order 41 of the CPC as per the order in A.S.170/1990 by the lower appellate court. No decree was passed. Of course the lower appellate court has got the power to dismiss an appeal at the admission stage. But as per sub-rule (4) thereof, an appellate, court, other than the High Court, while dismissing an appeal under sub-rule (1) of Order 41 shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. In the light of the aforesaid statutory provision, whether the appellate court was correct in dismissing the appeal by an order without a judgment and a decree is the substantial question of law involved in this case. The aforesaid statutory provision squarely answers this question in favour of the appellant. This results in setting aside the order of the lower appellate court and therefore the matter is remanded back to the lower appellate court to consider the appeal afresh in accordance with law. The lower appellate court shall consider whether the appeal is to be admitted or not, when the appellant appears before that court on 24-1-2000 as directed hereby. In case, the appeal could not be taken up for admission on that day, for some reason or the other, necessarily, its admission shall be considered at any rate within two weeks there from.
Appeal is disposed of as above. No costs.
