Supreme Court of India
SRI PRABODH CH. DAS AND ANR. versus MAHAMAYA DAS AND ORS. on 13 December 2019
SRI PRABODH CH. DAS AND ANR.
v.
MAHAMAYA DAS AND ORS.
(Civil Appeal No. 9407 of 2019)
DECEMBER 13, 2019
[S. ABDUL NAZEER AND SANJEEV KHANNA, JJ.]
Code of Civil Procedure, 1908 – Explanation to r.17(1) ofOr.41 – Dismissal of appeal for appellant’s default – The matterwas listed for hearing before the High Court, when the matter wastaken up, the counsel for appellants/defendants was not present toargue the matter and no request was made on his behalf – The HighCourt proceeded to decide the appeal on merits itself – Propriety of– Held: Not proper – Explanation to sub-rule (1) of r.17 of Or.41clarifies the law by making an express provision that where theappellant does not appear, the Court has no power to dismiss theappeal on merits – In other words, if the appellant does not appear,the Court may if it deems fit dismiss the appeal for default ofappearance but it does not have the power to dismiss the appeal onmerits – Therefore, impugned judgment of the High Court set asideand matter remitted to the High Court for fresh disposal inaccordance with law.
Disposing of the appeal, the Court
HELD: 1. Explanation to sub-rule (1) of Rule 17 was addedby Act 104 of 1976. Prior to 1976 conflicting views were expressedby different High Courts in the country as to the purport andmeaning 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 thelaw by making an express provision that where the appellant doesnot appear, the Court has no power to dismiss the appeal onmerits. Thus, Order 41 Rule 17(1) read with its explanation makesit explicit that the Court cannot dismiss the appeal on meritswhere the appellant remains absent on the date fixed for hearing.In other words, if the appellant does not appear, the Court may ifit deems fit dismiss the appeal for default of appearance but itdoes not have the power to dismiss the appeal on merits.[Para 9][21-G; 22-A]
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AAbdur Rahman and others v. Athifa Begum and others(1996) 6 SCC 62 : [1996] 5 Suppl. SCR 391;Ghanshyam Dass Gupta v. Makhan Lal (2012) 8 SCC745 : [2012] 8 SCR 153 – relied on.
Case Law Reference
B[1996] 5 Suppl. SCR 391relied onPara 10[2012] 8 SCR 153relied onPara 10
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9407of 2019.
CFrom the Judgment and Order dated 21.01.2015 by the High Courtof Tripura at Agartala in R.S.A. No. 45 of 2006.
Pijush K. Roy, Ms. Kakali Roy, Rajan K. Chourasia, Dr. NirmalChopra, Advs. for the appearing parties.
The Judgment of the Court was delivered byD
S. ABDUL NAZEER, J.
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1. Leave granted.
2. The question for consideration in this appeal is whether theHigh Court is justified in dismissing the second appeal on merits in theEabsence of the learned counsel for the appellants.
3. The appellants herein are the defendants in the suit T.S. 10 of2000 on the file of the Civil Judge (Junior Division) Khowai and therespondents are the plaintiffs. The plaintiffs filed the said suit for adeclaration of their title, recovery of possession and for mesne profits.FThe Trial Court dismissed the suit on 19.08.2002. Feeling aggrieved, theplaintiffs filed an Appeal No. 2 of 2003 before the Additional DistrictJudge, West Tripura, Khowai. The District Judge allowed the appeal on30.06.2006. The judgment and decree of the Trial Court was set asideand the plaintiffs were declared as owners of the suit land. Further, itGwas held that the plaintiffs are also entitled for recovery of possessionof the suit property. This judgment of the First Appellate Court has beenchallenged by the defendants before the Guwahati High Court in R.S.ANo.45 of 2006.
4. It is evident from the materials on record that the appeal waslisted for hearing several times. When the matter was taken up for hearingH
on 21.01.2015, learned counsel for the appellants/defendants was notpresent to argue the matter and no request was made on his behalf.Therefore, the High Court proceeded to decide the appeal on meritsitself. After consideration of the materials on record, the High Courtdismissed the appeal on merits.
5. We have heard the learned counsel for the parties.
6. The only contention raised by the learned counsel for theappellants is that the High Court was not justified in dismissing the appealon merits in the absence of the learned counsel for the appellants. Insupport of his contention, learned counsel has pressed into service theprovisions of Order XLI Rule 17(1) of the Code of Civil Procedure,1908 (‘CPC’ for short). On the other hand, learned counsel for therespondents has supported the judgment of the High Court.
7. It is not disputed that the matter was listed for hearing on21.01.2015 on which date learned counsel for the appellants was notpresent in the Court to argue the matter and no request was made on hisbehalf. Therefore, the High Court proceeded to decide the appeal onmerits 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) Whereon the day fixed, or on any other day to which the hearing may beadjourned, the appellant does not appear when the appeal is calledon for hearing, the Court may make an order that the appeal bedismissed.
1[Explanation.-Nothing in this sub-rule shall beconstrued as empowering the Court to dismiss the appeal onthe merits.]”
9. Explanation to sub-rule (1) of Rule 17 was added by Act 104 of1976. Prior to 1976 conflicting views were expressed by different HighCourts in the country as to the purport and meaning of sub-rule (1) ofRule 17 of Order 41 of CPC. Therefore, the explanation was introducedw.e.f 01.02.1977, to clarify the law by making an express provision thatwhere the appellant does not appear, the Court has no power to dismissthe appeal on merits. Thus, Order 41 Rule 17(1) read with its explanationmakes it explicit that the Court cannot dismiss the appeal on merits where 1 Ins. by CPC (Amendment) Act 104 of 1976, s 87, (w.e.f. 1-2-1977)
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Athe 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 theappeal for default of appearance but it does not have the power to dismissthe appeal on merits.
10. This position has been clarified by this Court in Abdur RahmanBand others v. Athifa Begum and others[2] wherein it was held thatHigh Court cannot go into the merits of the case when there was non-appearance of the appellant. In Ghanshyam Dass Gupta v. MakhanLal[3] this Court has reiterated the legal position as under:
“Prior to 1976, conflicting views were expressed by the differentCHigh Courts in the country as to the purport and meaning of sub-rule (1) of Rule 17 of Order 41 CPC. Some High Courts hadtaken the view that it was open to the appellate court to considerthe appeal on merits, even though there was no appearance onbehalf of the appellant at the time of hearing. Some High Courtshad taken the view that the High Court cannot decide the matterDon merits, but could only dismiss the appeal for the appellant’sdefault. Conflicting views raised by the various High Courts gaverise to more litigation. The legislature, therefore, in its wisdom,felt that it should clarify the position beyond doubt. Consequently,the Explanation to sub-rule (1) of Rule 17 of Order 41 CPC wasEadded by Act 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 of Order 41 CPC should be construed asempowering the appellate court to dismiss the appeal on meritswhere the appellant remained absent or left unrepresented on theday fixed for hearing the appeal. The reason for introduction ofsuch an Explanation is due to the fact that it gives an opportunityFto the appellant to convince the appellate court that there wassufficient cause for non-appearance. Such an opportunity is lost,if the courts decide the appeal on merits in absence of the counselfor the appellant.”
11. Coming to the facts of the present case, the Court has decidedGthe appeal on merits after noticing “…. On this date a request foradjournment was made on behalf of Mr. Lodh when the matter wasadjourned to 18.12.2014 and on 18.12.2014 Mr. Choudhury made arequest for adjournment. Today Mr. Choudhury is not even present to2 1996 (6) SCC 62H3 2012 (8) SCC 745
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 madeclearly in contravention of Rule 17(1) of Order XLI of the CPC.
12. Therefore, we set aside the impugned judgment and decreeof the High Court and remit the matter to the High Court for freshdisposal in accordance with law. Appeal is disposed of accordingly.However, there will be no order as to costs.
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Ankit Gyan
Appeal disposed of.
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