GHANSHYAM DASS GUPTAversusMAKHAN LAL

                   [2012] 8 S.C.R. 153


              GHANSHYAM DASS GUPTA                                 A
                            v.
                      MAKHAN LAL
             (Civil Appeal No. 5950 of 2012)

                    AUGUST 21, 2012
                                                                   B
   [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

    Code of Civil Procedure, 1908 - Order 41 Rule 17 (1)
Explanation - Scope of - Dismissal of appeal on merit by
High Court, when there was no appearance on behalf of the C
appellant - Held: In view of the explicit language of
Explanation to Order 41 Rule 17(1), High Court could not
have gone into the merits of the case, if there was no
appearance on behalf of the appellant - Direction to High
Court to dispose of the appeal in accordance with law.    D
    Abdur Rahman and Ors. vs. Athifa Begum and Ors.
(1996) 6 SCC62: 1996 (5) Suppl. SCR 391 - relied on.
                      Case Law Reference:
    1996 (5) Suppl. SCR 391          Relied on       Para 9        E
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5950 of 2012.
    From the Judgment & Order dated 13.1.2012 of the High
Court of Delhi at New Delhi in RFA No. 664 of 2003.
                                                                       F
      Rakesh Dahiya, Gagan Deep Sharma, Preeti Singh,
 Vikram Gulia for the Appellant.
     The following Order of the Court was delivered
                          ORDER
                                                                       G
     Leave granted.
      1. 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
                               153                                     H
        154      SUPREME COURT REPORTS                [2012) 8 S.C.R.


    A appellant, in view of the explanation to Order 41 Rule 17(1) of
      the Code of Civil Procedure. (CPC).
        2. The appellant herein had engaged a lawyer for
    conducting his appeal before the Delhi High Court. The appeal
   was admitted and was pending for adjudication. Later, the
8 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
C 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
D the appellant before the High Court. In fact, there was no
  appearance on behalf of the respondent as well.
       3. 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
E 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/
F         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.
          7.     In view of the above, there is no merit in the appeal
G         which is accordingly dismissed leaving the parties to bear
          their own costs."
         4. Aggrieved by the judgment of the High Court, this
     appeal has been preferred.
          5. Shri Rakesh Dahiya, learned counsel appearing on
H
    GHANSHYAM DASS GUPTA v. MAKHAN LAL                        155


behalf of the appellant, submitted that the High Court was not          A
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          B
 Order 41 Rule 17(1) CPC.
    6. 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             C
deciding the matter on merits even if there was no appearance
on behalf of the appellant.
      7. 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 representation on behalf of the appellant,       D
 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             E
      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
                                                                            F
      on the merits."
        8. 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           G
  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,
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        156     SUPREME COURT REPORTS                [2012] 8 S.C.R.


    A 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
 B 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 appellant's default.
    Conflicting views raised by the various High Courts gave rise
    to more litigation. The Legislature, therefore, in its wisdom, felt
C 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 104of1976, 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
D 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
E absence of the counsel for the appellant.
        9. 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
F interpreting the said provision, this Court took 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.

G         10. 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.

H K.K.T.                                           Appeal allowed-