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Order 41 Rule 17(1) read with its explanation makes it explicit that the Court cannot dismiss the ap

SRI PRABODH CH. DAS AND ANR. v. MAHAMAYA DAS AND ORS. CIVIL APPEAL NO.9407 OF 2019, (Arising out of S.L.P. (Civil) No. 14564 of 2015) – December 13, 2019.

The appellants herein are the defendants and the respondents are the plaintiffs. The plaintiffs filed suit for declaration of their title, recovery of possession and mesne profits. The Trial Court dismissed the suit and the plaintiffs appealed to the Additional District Judge which allowed the appeal. The judgment of the Trial Court was set aside and the plaintiffs were declared as the owners of the suit land and they were entitled to recovery of the suit property. This judgment was challenged by the defendants before Guwahati High Court. While the District Judge declared his judgment the council for the defendants was not present to argue the matter. The HC dismissed the appeal on merits.

The question before this court is whether the HC is justified in dismissing the second appeal on merits in the absence of learned counsel for the appellants?

The contention of the counsel for the appellants is that the HC was not justified in dismissing the appeal on merits in the absence of the counsel for the appellants. They quoted the service order rules in the Code of Civil Procedure, 1908.

The counsel for the respondent supported the judgment of the HC.

The court made the following observations, after hearing the arguments of the counsels. It observed that the explanation to sub-rule (1) of Rule 17 says that where the appellant does not appear, the court has no power to dismiss the appeal on merits.  That is if the appellant does not appear, the Court may dismiss the appeal for default of appearance but cannot dismiss the appeal on merits. In Abdur Rahman and others  v. Athifa Begum and others it was held that, when the appellants fail to appear the HC cannot go into the merits of the case. In Ghanshyam Dass Gupta  v. Makhan Lal a similar observation was made. In the present case the HC has decided the case on merits in contravention of Rule 17(1) of Order XLI of the CPC.

Order 41 Rule 17(1) read with its explanation makes it explicit that the Court cannot dismiss the appeal on merits where the appellant remains absent on the date fixed for hearing. In other words, if the appellant does not appear, the Court may if it deems fit dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits.

Thus the court decided to set aside the impugned judgment and decree of the High Court and remit the matter to the HC for fresh disposal of the case in accordance with law.

– PRIYADHARSHINI R

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