Summary
The Court set aside dismissal of a second appeal on merits when the appellants’ counsel was absent. Order XLI Rule 17(1), read with its Explanation, permits dismissal for default of appearance but does not empower adjudication against the absent appellant on merits. The matter was remitted to the High Court for fresh disposal.
Issues
- Whether the High Court could dismiss a second appeal on merits in the absence of the appellants’ counsel.
Provisions considered
- Order XLI Rule 17(1) and Explanation, Code of Civil Procedure, 1908The express prohibition on dismissal on merits when the appellant does not appear governed the second appeal. (¶¶ 8, 9, 10, 11)
Held
- The Explanation added in 1976 resolved conflicting views by making clear that an appeal may be dismissed for non-appearance, but not on merits in the appellant’s absence. A merits decision also removes the opportunity to explain sufficient cause for non-appearance. (¶¶ 8, 9, 10)
- The High Court expressly proceeded on merits despite counsel’s absence and no request on his behalf. Its judgment contravened Order XLI Rule 17(1) and could not stand. (¶¶ 7, 11)
Result
The High Court judgment and decree were set aside and the matter remitted for fresh disposal in accordance with law. Appeal disposed of without costs.