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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO  …  5950      OF     2012   (Arising     out     of     SLP(C)     No.13475     of     2012)   

Ghanshyam Dass Gupta ….. Appellant

Versus

Makhan Lal ….. Respondent

O R D E R

Leave granted.

The question that arises for consideration in this case is whether the  

High Court was justified in deciding the appeal on merits when there was  

no appearance on behalf of the appellant, in view of the explanation to  

Order 41 Rule 17(1) of the Code of Civil Procedure.  (CPC).   

The appellant herein had engaged a lawyer for conducting his appeal  

before the Delhi High Court.  The appeal was admitted and was pending for

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adjudication.  Later, the lawyer of the appellant was elevated as a Judge of  

the Delhi High Court and hence he returned the files to the appellant.  The  

appellant later engaged another lawyer to conduct the case.   However,  

due to the mistake by the clerk, the Vakalatnama of that advocate could not  

be filed and hence the name of the newly engaged lawyer did not figure in  

the cause list. The appeal came up for final hearing on 13.1.2012.  

representation was made by a lawyer on behalf of the previous lawyer  

stating that the case files had already been returned to the party.  

Consequently, there was no effective appearance on behalf of the  

appellant before the High Court.  In fact, there was no appearance on  

behalf of the respondent as well.   

Learned Judge, however, proceeded to consider the appeal on  

merits, without the assistance of learned counsel on either side.  By a  

detailed judgment, the appeal was dismissed on 13.1.2012 stating as  

follows:

“6. In view of the above, there is no merit in the appeal  inasmuch as not only because the appellant/defendant was  guilty of breach of contract but also because the  appellant/defendant did not plead and prove the orfeiture of  earnest money or any loss having been caused to him.  The  appellant/defendant was, therefore, liable to refund the amount  which he received under the Agreement to Sell.

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7. In view of the above, there is no merit in the appeal which  is accordingly dismissed leaving the parties to bear their own  costs.”

Aggrieved by the judgment of the High Court, this appeal has been  

preferred.   

Shri Rakesh Dahiya, learned counsel appearing on behalf of the  

appellant, submitted that the High Court was not justified in deciding the  

appeal on merits since there was no representation on behalf of the  

appellant.  Learned counsel pointed out that the only course open to the  

Court was either to dismiss the appeal on default or adjourn the same, but  

not to decide the matter on merits, in view of the explanation to Order 41  

Rule 17(1) CPC.

Learned counsel appearing on behalf of the respondent supported  

the judgment of the High Court contending that the appeal was of the year  

2003 and came up for final hearing after a period of nine years, and the  

High Court was justified in deciding the matter on merits even if there was  

no appearance on behalf of the appellant.

We are, in this case, called upon to consider whether the High Court  

was justified in deciding the appeal on merits in the absence of any

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representation on behalf of the appellant, in view of Explanation to Order  

41 Rule 17(1) CPA.   The said provision is given below for easy reference:

“Rule 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 appear when  the appeal is called on for hearing, 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.”

Rule 17(1) of Order 41 deals with the dismissal of appeal for  

appellant’s default.  The above mentioned provision, even without  

explanation, if literally read, would clearly indicate that if the appellant does  

not appear when the appeal is called for hearing, the court has to dismiss  

the appeal.   The provision does not postulate a situation where, the appeal  

has to be decided on merits, because possibility of allowing of the appeal is  

also there, if the appellant has a good case on merits; even if no body had  

appeared for the appellant.   Prior to 1976, conflicting views were  

expressed by different High Courts in the country as to the purport and  

meaning of sub-rule (1) of Rule 17 of Order 41 CPC.   Some High Courts  

had taken the view that it was open to the appellate court to consider the  

appeal on merits, even though there was no appearance on behalf of the  

appellant at the time of hearing.  Some High Courts had taken the view that

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the High Court cannot decide the matter on merits, but could only dismiss  

the appeal for appellant’s default.  Conflicting views raised by the various  

High Courts gave rise to more litigation.  The Legislature, therefore, in its  

wisdom, felt that it should clarify the position beyond doubt.  Consequently,  

Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was added by Act  

104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 of  

Order 41 CPC should be construed as empowering the appellate court to  

dismiss the appeal on merits where the appellant remained absent or left  

un-represented on the day fixed for hearing the appeal. The reason for  

introduction of such an explanation is due to the fact that it gives an  

opportunity to the appellant to convince the appellate court that there was  

sufficient cause for non-appearance.  Such an opportunity is lost, if the  

courts decide the appeal on merits in absence of the counsel for the  

appellant.    

We may, in this connection, refer to a judgment of this Court in  

Abdur Rahman and Others v. Athifa Begum and Others (1996) 6 SCC  

62, wherein the scope of explanation to Rule 17(1) of Order 41 CPC came  

up for consideration.  While interpreting the said provision, this Court took

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the view that the High Court could not go into the merits of the case if there  

was no appearance on behalf of the appellant.We also endorse that view.   

For the reasons stated above, we are inclined to allow this appeal  

and set aside the judgment of the High Court and restore FRA No. 664 of  

2003 and direct the High Court to dispose of the same in accordance with  

law.  However, there will be no order as to costs.

...……………………………J. (K.S. Radhakrishnan)

……………………………..J. (Dipak Misra)

New Delhi, August 21, 2012