GHANSHYAM DAS GUPTA Vs MAKHAN LAL
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: C.A. No.-005950-005950 / 2012
Diary number: 11606 / 2012
Advocates: RAKESH DAHIYA Vs
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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