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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  9407   OF  2019 (Arising out of S.L.P. (Civil) No. 14564 of 2015)  

SRI PRABODH CH. DAS AND ANR.        … APPELLANTS  

VERSUS

MAHAMAYA DAS AND ORS.     … RESPONDENTS

J  U  D  G  M  E  N  T

S.ABDUL NAZEER, J.

1. Leave granted.

2. The question for consideration in this appeal is whether the

High Court is justified in dismissing the second appeal on merits in

the absence of the learned counsel for the appellants.

3. The appellants herein are the defendants in the suit T.S. 10 of

2000 on the file of the Civil Judge (Junior Division) Khowai and the

respondents are the plaintiffs.  The plaintiffs filed the said suit for a

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declaration of their title, recovery of possession and for  mesne

profits.  The Trial Court dismissed the suit on 19.08.2002.  Feeling

aggrieved, the plaintiffs filed an Appeal No. 2 of 2003 before the

Additional District Judge, West Tripura, Khowai. The District Judge

allowed the appeal on 30.06.2006.  The judgment and decree of the

Trial Court was set aside and the plaintiffs were declared as owners

of the suit land.   Further, it was held that the plaintiffs are also

entitled for recovery of possession of the suit property.   This

judgment of the First Appellate Court has been challenged by the

defendants before the Guwahati High Court in R.S.A No.45 of 2006.

4. It is evident from the materials on record that the appeal was

listed for hearing several times.  When the matter was taken up for

hearing on 21.01.2015, learned counsel for the

appellants/defendants was not present to argue the matter and no

request was made on his behalf. Therefore, the High Court

proceeded to decide the appeal on merits itself.  After consideration

of the materials on record, the High Court dismissed the appeal on

merits.

5. We have heard the learned counsel for the parties.

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6. The only contention raised  by the learned counsel for the

appellants is that the High Court was not justified in dismissing the

appeal on  merits in the  absence  of the learned  counsel for the

appellants. In support of his contention, learned counsel has

pressed into service the provisions of Order XLI Rule 17(1) of the

Code of Civil Procedure, 1908 (‘CPC’ for short).  On the other hand,

learned counsel for the respondents has supported the judgment of

the High Court.

7. It is not disputed that the matter was listed for hearing on

21.01.2015 on which date learned counsel for the appellants was

not present in the Court to argue the matter and no request was

made on his behalf.  Therefore, the High Court proceeded to decide

the appeal on merits itself.

8. Order 41 Rule 17(1) of the Code of Civil Procedure is as under:

“R.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 make an order that the appeal be dismissed.

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1[Explanation.­ Nothing in this sub­rule shall be construed as empowering the Court to dismiss the appeal on the merits.]”

9. Explanation to sub­rule (1) of Rule 17 was added by Act 104 of

1976. 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 of CPC.  Therefore, the explanation

was introduced w.e.f 01.02.1977, to clarify the law by making an

express  provision that  where the  appellant  does  not  appear, the

Court has no power to dismiss the appeal on merits.  Thus, 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.

10. This position has been clarified by this Court in  Abdur

Rahman and others v. Athifa Begum and others2 wherein it was

held that High Court cannot go into the merits of the case when 1 Ins. by CPC (Amendment) Act 104 of 1976, s 87, (w.e.f. 1-2-1977)

2 1996 (6) SCC 62

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there was non­appearance of the appellant.   In  Ghanshyam Dass

Gupta v.  Makhan Lal3  this Court has reiterated the legal position

as under:

“Prior to 1976, conflicting views were expressed by the different High Courts  in  the country as  to the purport and meaning of sub­rule (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 the  High Court  cannot  decide the matter on merits, but could only dismiss the appeal for the  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, the Explanation to sub­rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it  explicit  that nothing in sub­rule (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 unrepresented 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 non­appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant.”

11. Coming to the facts of the present case, the Court has decided

the appeal on merits after noticing “…. On this date a request for 3 2012 (8) SCC 745

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adjournment was made on behalf of Mr. Lodh when the matter was

adjourned to 18.12.2014 and on 18.12.2014 Mr. Choudhury made

a request for adjournment.   Today  Mr. Choudhury is not even

present to argue the matter and no request has been made on his

behalf.   I, therefore, proceed to decide the appeal on merits itself.”

This order has been made clearly in contravention of Rule 17(1) of

Order XLI of the CPC.   

12. Therefore, we set aside the impugned judgment and decree of

the High Court and remit the matter to the High Court for fresh

disposal in accordance with law.  Appeal is disposed of accordingly.

However, there will be no order as to costs.

             ……….……………………J.                (S. ABDUL NAZEER)

….…………………………J.  (SANJIV KHANNA)

New Delhi; December 13, 2019.