SRI PRABODH CH. DAS AND ANR.versusMAHAMAYA DAS AND ORS.

                        [2019] 15 S.C.R. 19                            19


              SRI PRABODH CH. DAS AND ANR.                             A
                                 v.
                 MAHAMAYA DAS AND ORS.
                  (Civil Appeal No. 9407 of 2019)
                      DECEMBER 13, 2019                                B
     [S. ABDUL NAZEER AND SANJEEV KHANNA, JJ.]
       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
                                                                       C
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       D
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
                                                                       E
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          F
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         G
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]                                                   H
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20            SUPREME COURT REPORTS                         [2019] 15 S.C.R.


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.
                             Case Law Reference
B    [1996] 5 Suppl. SCR 391           relied on                Para 10
     [2012] 8 SCR 153                  relied on                Para 10
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9407
     of 2019.
C           From the Judgment and Order dated 21.01.2015 by the High Court
     of Tripura at Agartala in R.S.A. No. 45 of 2006.
          Pijush K. Roy, Ms. Kakali Roy, Rajan K. Chourasia, Dr. Nirmal
     Chopra, Advs. for the appearing parties.
           The Judgment of the Court was delivered by
D
           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
E    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.
F    The Trial Court dismissed the suit on 19.08.2002. Feeling aggrieved, the
     plaintiffs filed an Appeal No. 2 of 2003 before the Additional District
     Judge, West Tripura, Khowai. The District Judge allowed the appeal on
     30.06.2006. The judgment and decree of the Trial Court was set aside
     and the plaintiffs were declared as owners of the suit land. Further, it
G    was held that the plaintiffs are also entitled for recovery of possession
     of the suit property. This judgment of the First Appellate Court has been
     challenged by the defendants before the Guwahati High Court in R.S.A
     No.45 of 2006.
             4. It is evident from the materials on record that the appeal was
     listed for hearing several times. When the matter was taken up for hearing
H
      SRI PRABODH CH. DAS AND ANR. v. MAHAMAYA DAS                             21
               AND ORS. [S. ABDUL NAZEER, J.]

on 21.01.2015, learned counsel for the appellants/defendants was not           A
present to argue the matter and no request was made on his behalf.
Therefore, the High Court proceeded to decide the appeal on merits
itself. After consideration of the materials on record, the High Court
dismissed the appeal on merits.
          5. We have heard the learned counsel for the parties.                B
      6. The only contention raised by the learned counsel for the
appellants is that the High Court was not justified in dismissing the appeal
on merits in the absence of the learned counsel for the appellants. In
support of his contention, learned counsel has pressed into service the
provisions of Order XLI Rule 17(1) of the Code of Civil Procedure,             C
1908 (‘CPC’ for short). On the other hand, learned counsel for the
respondents has supported the judgment of the High Court.
      7. It is not disputed that the matter was listed for hearing on
21.01.2015 on which date learned counsel for the appellants was not
present in the Court to argue the matter and no request was made on his        D
behalf. Therefore, the High Court proceeded to decide the appeal on
merits 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) Where
          on the day fixed, or on any other day to which the hearing may be    E
          adjourned, the appellant does not appear when the appeal is called
          on for hearing, the Court may make an order that the appeal be
          dismissed.
                     1
                    [Explanation.-Nothing in this sub-rule shall be
             construed as empowering the Court to dismiss the appeal on        F
             the merits.]”
       9. 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          G
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
1
    Ins. by CPC (Amendment) Act 104 of 1976, s 87, (w.e.f. 1-2-1977)           H
22               SUPREME COURT REPORTS                         [2019] 15 S.C.R.


A    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.
            10. This position has been clarified by this Court in Abdur Rahman
B    and others v. Athifa Begum and others2 wherein it was held that
     High Court cannot go into the merits of the case when there was non-
     appearance of the appellant. In Ghanshyam Dass Gupta v. Makhan
     Lal3 this Court has reiterated the legal position as under:
              “Prior to 1976, conflicting views were expressed by the different
C             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 the High Court cannot decide the matter
D             on merits, but could only dismiss the appeal for the 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,
              the Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was
E             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 unrepresented 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
F             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.”
           11. Coming to the facts of the present case, the Court has decided
G    the appeal on merits after noticing “…. On this date a request for
     adjournment was made on behalf of Mr. Lodh when the matter was
     adjourned to 18.12.2014 and on 18.12.2014 Mr. Choudhury made a
     request for adjournment. Today Mr. Choudhury is not even present to
     2
         1996 (6) SCC 62
     3
H        2012 (8) SCC 745
    SRI PRABODH CH. DAS AND ANR. v. MAHAMAYA DAS                               23
             AND ORS. [S. ABDUL NAZEER, J.]

argue the matter and no request has been made on his behalf. I, therefore,     A
proceed to decide the appeal on merits itself.” This order has been made
clearly in contravention of Rule 17(1) of Order XLI of the CPC.
      12. Therefore, we set aside the impugned judgment and decree
of the High Court and remit the matter to the High Court for fresh
disposal in accordance with law. Appeal is disposed of accordingly.            B
However, there will be no order as to costs.
.

Ankit Gyan                                               Appeal disposed of.



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