Sri Prabodh Ch. Das and Anr. vs Mahamaya Das and Ors.

Court

Supreme Court of India

Date

13 December 2019

Case No.

Civil Appeal No. 9407 of 2019

Result

Disposed

Bench

S. Abdul Nazeer, Sanjiv Khanna

Citation

[2019] 15 S.C.R. 19 : 2019 INSC 1371

Headnote

Code of Civil Procedure, 1908 – Explanation to r.17(1) of Or.41 – Dismissal of appeal for appellant’s default – The matter was listed for hearing before the High Court, when the matter was taken up, the counsel for appellants/defendants was not present to argue the matter and no request was made on his behalf – The High Court proceeded to decide the appeal on merits itself – Propriety of – Held: Not proper – Explanation to sub-rule (1) of r.17 of Or.41 clarifies 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 – 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 – Therefore, impugned judgment of the High Court set aside and matter remitted to the High Court for fresh disposal in accordance with law.

Disposing of the appeal, the Court

HELD: 1. Explanation to sub-rule (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. [Para 9][21-G; 22-A]

Abdur 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 SCC

745 : [2012] 8 SCR 153 – relied on.

The Judgment of the Court was delivered by 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 declaration of their title, recovery of possession and for mesne profits. The Trial Court dismissed the suit on 19.08.

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