Holding

An appeal cannot be decided on its merits in the absence of the appellant or his advocate; at most it may be dismissed for default, and the High Court’s dismissal on merits was improper.

Summary

The Secretary, Department of Horticulture, Chandigarh filed a second appeal under Section 100 of the CPC against a decree reinstating workman Raghu Raj, which had been admitted in 1980 and remained pending for decades. In 2006 the Punjab and Haryana High Court dismissed the appeal on its merits despite the appellant’s counsel being absent, and also rejected a recall application. The Supreme Court examined whether a court may decide an appeal on merits when the appellant or his advocate is absent, interpreting Order XLI Rule 17 (with its explanation) and Order XLII Rule 1 of the CPC. It held that an appeal can at most be dismissed for default, not on merits, and that the High Court should have adjourned the matter to allow the counsel to appear. Consequently, the Supreme Court set aside the High Court’s orders and remitted the case for fresh disposal, also directing costs to be paid to the respondent.

Issues considered

Can a High Court dismiss an appeal on merits when the appellant or his advocate is absent, contrary to Order XLI Rule 17 of the CPC?
Does the non‑appearance of counsel constitute a default that permits only dismissal, not a merits‑based decision?
Does the fact that the appeal is a second appeal (appeal from an appellate decree) alter the applicability of Order XLI Rule 17?
Should the High Court have adjourned the hearing to allow the appellant’s counsel to make submissions?
Should the orders dismissing the second appeal and the recall application be set aside?

Legislation cited

Code of Civil Procedure, 1908s. Order XLII Rule 1, s. Order XLI Rule 17 (with Explanation), s. Section 100

Subjects

Civil ProcedureSecond AppealDefaultAdvocate non‑appearanceOrder XLI Rule 17Recall applicationIndustrial disputeReinstatement

Judgment

[2008] 14 S.C.R. 580

THE SECRETARY, DEPARTMENT OF HORTICULTURE,· ~_,.,--
A
CHANDIGARH & ANR.
\C
RAGHU RAJ
(Civil Appeal No. 6142 of 2008)
B OCTOBER 17, 2008
[C.K. THAKKER AND D.K. JAIN,. JJ.] 'r
Code of Civil Procedure, 1908 - 0. XU, rr 17 and 19 rlw
c 0. XL/Ir. 1 - Appeal from Appellate Decree - Second appeal
- Dismissal of, on merits in absence of counsel for the appel-
/ant - Propriety of - Held: Not proper - Appeal can be dis;.
missed for default but cannot be decided on merits in absence
of appellant or his advocate - On facts, appeal which was ad-
milted in 1980 came up for final disposal in 2006 - Also sub-
D
stantial question of law· framed for the first time in 2006 - Jn
view thereof, High Court ought to have granted opportunity to
t
the counsel for appellant to make his submissions by adjourn-
ing the matter - Thus, order of High Court dismissing Second
Appeal as a/so recall application set aside -:-- Matter remitted
E to High Court for fresh disposal.

Advocate - Absence/Non-appearance of - Held: Can-
not be excused if sufficient cause not shown - Advocate is
duty bound to appear and argue the case as and when it is
F called out for hearing or make alternative arrangement - Fail-
ure to do so would be unfair to the client and discourteous to \ 1'
the Court and must be severely discountenanced - However,
when advocate fails to appear, party should not suffer on ac-
count of default or non-appearance of advocate.
G Aggrieved, by the decree passed by the lower ap-
pellate court re-instating the responclent-workman, appel-
!ant-employer filed second appeal. The appeal was ad- v
mitt~d in year 1980 and was pending for final disposal. In
year 2006, the High Court dismissed the appeal on merits
H 580
THE SECRETARY, DEPT. OF H., CHANDIGARH 581
& ANR. v. RAGHU RAJ
_, -4 in absence of the counsel for the appellant. Application A
for recalling the said order was also dismissed. Hence,
the present appeal.
Allowing the appeal and remitting the matter to the
High Court, the Court.
B
HELD: 1.1 It cannot be gainsaid that an advocate has
"") no right to rem.ain absent from the Court when the case
of his client· comes up for hearing . .He is duty bound to
attend the case in Court or to mak~ an alternative arrange-
ment. Non-appearance in Court without 'sufficient cause' c
cannot be excused. Such absence is not only unfair to
the client of the advocate but also unfair and discourte-

- dus to the Court and can never be countenanced. At the
same time, however, when a party engages an advocate
who is expected to appear at the time of hearing but fails
D
to appear, normally, a party should not suffer on account
of default or non-appearance of the advocate. [Paras 27
+ and 28] [589-D-F]
1.2 It is clear that this Court has always insisted ad-
· vocates to appear and argue the case as and when it is E
called out for hearing. Failure to do so would be unfair to
the client and discourteous to the Court and must be se-
verely discountenanced. At the same time, the Court has
also emphasized doing justice to the cause wherein it is
appropriate that both the parties are present before the F
... ; Court and they are heard. Once a party engages a coun-
sel, he thinks that his advocate will appear when the case
will be taken up for hearing and Court calls upon the coun-
sel to make submissions. It is keeping in view these prin-
ciples that the Court does not proceed to hear the matter
G
in absence of the counsel. [Para 34] [592-D-F]
~.~ Rafiq & Anr. V Munshi/al & Anr. (1981) 2 SCC 788; Smt.
Lachi Tewari & Ors. v. Director of Land Records & Ors, 1984
Supp. SCC 431; Mangi Lal & Ors. v: State of M.P, (1994) 4
.... SCC 564; Tahil Ram /ssardas Sadaranganj & Ors. v. H
582 SUPREME COURT REPORTS [2008] 14 S.C.R.

A Ramchand /ssardas Sadaranganj & Anr., 1993 Supp (3) SCC
256 - referred to.
2.1 In the instant case, the advocate, appearing for
the appellants, has filed an affidavit in support of the re-
call application. It is clear from the order dated April 19,
8 2006 that at the time of hearing of arguments, the counsel
for: the appellant was not present. The arguments on be-
half of the respondent-workman were heard and the or- \--
!
der was reserved. But, in the subsequent order dated April
25; 2006, the Judge who had heard the matter on April 19,
C 2006 noticed that a substantial question of law had not
been framed while admitting the appeal. Therefore, the
Judge ordered listing of the appeal for rehearing on April
26, 2006 and accordingly, the matter was posted for hear-
ing on April 26, 2006. On that day, the Judge framed 'sub-
D stantial question of law and heard the counsel for the re-
spondent-workman. The counsel for the appellant was
not present. It is thus clear that substantial question of t
law was framed by the Court during the course of hear-
ing of Second Appeal for the first time on April 26,. 2006.
E On the facts and in the circumstances in their totality, even
though the counsel for the appellant was not present, it
would have been appropriate, had the High Court granted
an opportunity to the counsel for the appellant to make
his submissions by adjourning the matter. [Paras 36, 38,
F 39 and 40] [592 D-F,H]
2.2 It is true that in the instant case, the appeal be-
fore the High Court was not an Appeal from Original De-
cree (First Appeal), but an Appeal from Appellate Decree
(Second Appeal). But Rule 1 of Order XLll which deals with
G Appeals from. Appellate Decrees (Second Appeals) lays
down procedure and expressly states that the Rules of
Order XLI shall apply so far as may be to Appeals from
Appellate Decrees. Prima facie, therefore, it appears that
once an appea.I is admitted and is placed for hearing i.e.
·H hearing on merits, it can be dismiss·ed for default but can-
THE SECRETARY, DEPT. OF H., CHANDIGARH 583
& ANR. v. RAGHU RAJ

not be decided on merits in absence of appellant (or his A
advocate). [Para 44] [596 G-H, 597 A]
2.3 In view of the fact, however, on the facts in their
entirety, the High Court ought not to have proceeded to
decide the appeal, it is held that the impugned order of
the High Court is liable to be set aside. Thus, the orders 8
passed by the High Court dismissing the Second Appeal
as also dismissing the Recall Application are hereby set
aside and the matter is remanded to the High Court for
fresh disposal in accordance with law. It is clarified that
this Court may not be understood to have expressed ti- C
nal opinion one way or the other as regards interpreta-
tion of Rule 17 of Order XLI read with Rule 1 of Order XLll.
No opinion is expressed one way or the other on merits
of the matter as well. [Paras 45, 46 and 47] [597 8-E]
CASE LAW REFERENCE D

(1981) 2 SCC 788 Referred to Para 29
(1984) Supp. SCC 431 Referred to Para 31
(1994) 4 SCC 564 Referred to Para 33
E
(1993) Supp (3) SCC 256 Referred to Para 33
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 6142
of 2008
From the final Judgment and Order dated 26.4.2006 and F
1.9.2006 of the High Court of Punjab and Haryana at Chandigarh
in RSA No. 2473of1980 and C.M. No. 8706-C of 2006 in RSA
No. 2473 of 1980 respectively
Kamini Jaiswal and Shomila Bakshi for the Appellants.
G
S.M. Sarin and P.N. Puri for the Respondent.
The Judgment of the Court was delivered by

C.K. THAKKER, J. 1. Leave granted.
'
2. The present appeal is filed by the Department of Horti- H
584 SUPREME COURT REPORTS [2008] 14 S.C.R.

~~-~
A culture, Chandigarh and another (appellants herein) against the 1 ..
judgment and the decree passed by the Court of Senior Sub
Judge with Enhanced Appellate Powers, Chandigarh on Janu_.
. ary 30, 1980 in Civil Appeal No. 41 of 1979 and confirmed by
the High Court on April 26, 2006 in Second Appeal No. 2473 of
B 1980 as also an order, dated September 01, 2006 rejecting an
application to recall the said order.
~

3. Sh.ortly stated the facts of the case are that Raghu Raj- I

respondent herein, was appointed by the Executive Engineer, "'
Horticulture Division, Chandigarh as 'beldar' on purely tempo-
c rary basis. Initial appointment was made in 1969 and after some-
time, he was discontinued. Again, fresh appointment was given
in 1972. It was expressly stated when the respondent was ap-
pointed that his services were· liable to be terminated at any
time without notice or reason. According to the appellant, the
D services of the respondent were not found to be satisfactory
and accordingly his services were terminated on September
18, 1976. +
4. The respondent raised an industrial dispute. The par-
ties, however, settled the matter on February 15, 1977 pursuant
E to which the respondent was reinstated in service with effect
'I

from February 19, 1977. The respondent-workman was placed
on probation for a period of six months. According to the appel-
lants, again the services of the respondent were found to be
unsatisfactory. His services were, therefore, terminated by an
F order dated August 12, 1977.
'" ·-.
5. This time, the respondent-workman, instead of moving
Industrial Forum, approached a Civil Court by instituting a suit
in the Court of Sub Judge, Chandigarh. It was registered as
Case No. 153of1977. The learned Judge, by a judgment and
G
decree, dated May 25, 1979, dismissed the suit filed by the
plaintiff. The Court held that the impugned order of termination
of services of the plaintiff was "perfectly valid and legal" and
J'
that the order was passed in accordance with terms and condi-
tions of t~e appointment order.
H
THE SECRETARY, DEPT. OF H., CHANDIGARH 585
& ANR. v. RAGHU RAJ [C.K. THAKKER, J.]

6. Being aggrieved by the decree passed by the trial Court, A
the respondent-workman preferred Civil Appeal No. 41 of 1979.
The Court of Sub-Judge with Enhanced Appellate
Powers(appellate Court) allowed the appeal, set aside the de-
cree passed by the trial Court and held that what was stated in
the order of termination was that the work as well as conduct of B
the respondent was unsatisfactory. Imputation of unsatisfactory
conduct would amount to 'stigma'. Since no notice was issued
to the employee, nor any explanation was sought from him, nor
an opportunity of being heard was afforded, the order was li-
able to be set aside being violative of principles of natural jus- c
tice. Accordingly, the order was declared null and void and in-
operative and a decree was passed holding that the respon-
dent-plaintiff was deemed to be in service and was entitled to
all benefits of salary, increments and other allowances. The
amount comes to few lakhs of rupees.
D
7. Aggrieved and dissatisfied with the decree of the lower
t appellate Court, the appellants herein preferred a second ap-
peal under Section 100 of the Code of Civil Procedure, 1908.

.. The appeal was registered as Regular Second Appeal No. 24 73
of 1980 and was admitted on November 11, 1980. By a judg-
ment and order dated April 26, 2006, the appeal was dismissed
E

on merits.
8. The judgment itself recites;
"None for the appellants". F
9. On behalf of the respondent, however, an advocate ap-
peared. The appeal was dismissed with costs and the judg-
ment and the decree passed by the learned Senior Sub-Judge
(appellate court) was confirmed.
G
10. The appellants, on September 13, 2006, filed an ap-
plication for recall of the order, dated April 26, 2006 dismissing
the appeal with a prayer to rehear the matter. But the said appli-
cation was also dismissed by the High Court on October 1,
2006. Both the orders are challenged in the present appeal.
H
586 SUPREME COURT REPORTS [2008] 14 S.C.R.

A 11. On January 19, 2007, the Special Leave Petition was
l~-J-
posted for admission hearing. Notice was issued. In the notice
itself it was stated that it was issued on the limited question as
to why the order passed by the High Court should not be set
aside and the matter be remitted to the High Court for fresh
B disposal in accordance with law after hearing both the parties.
T~e respondent was served who appeared through an advo-
cate and also filed a counter-affidavit. The matter was ordered
to be placed for final hearing and accordingly it has been placed ~-
before us.
,"":.-
c 12. We have heard learned counsel for the parties.
..,,

13. The learned counsel for the appellant submitted that
the High Court committed an error of law and of jurisdiction in
dismissing the appeal filed by the appellants herein in absence
of the advocate and without hearing him. It was submitted that
D
the Second Appeal was filed in 1980. It was admitted and was
pending for final disposal. For more than two decades, it did
not come up for hearing. In 2006, the appeal was placed for t
final disposal. The learned advocate for the appellants could
not remain present and the High Court dismissed the appeal
E on merits. As soon as the appellant came to know about ex-
parte dismissal of appeal, an application to recall the order was
filed but it was also rejected by the Court. It was, therefore, sub-
mitted that the orders passed by the High Court deserve to be
-
set aside.
F
14. It was aiso contended that the High Court could not
have dismissed the appeal on merits in absence of the advo-
,. ~

cate. The appeal was admitted in 1980. In accordance with the
provisions of the Code, at the most, the appeal could have been
dismissed "for appellants' default" and not on merits. On that
G
ground also, the impugned orders are vulnerable.
15. It was submitted by the learned counsel, that the ap-
k/
pellants had engaged an advocate. They were, therefore, un-
der the impression that the lawyer will take care of the case and
H will appear as and when the appeal will be called out for.hear-
....,-
11 THE SECRETARY, DEPT. OF H., CHANDIGARH 587
~
& ANR. v. RAGHU RAJ [C.K. THAKKER, J.]

·¢
-~ -1. ing. Even if it is assumed that there was default on the part of A
r- I
the advocate in not appearing at the time of hearing, the appel-
lant should not suffer. For that reason also, the appeal should
be allowed and rehearing should be ordered.
1 16. The counsel also submitted that Civil Court had no ju-
\
I risdiction in the matter and the case, could not have entertained, B
1
..... dealt with and decided by granting reinstatement and payment

I
t 1 of back-wages which was really an 'industrial dispute'. The de-
crees passed by the Courts below are, therefore, without juris-
diction.
c
17. The counsel submitted that even on merits, the order
terminating the services of the respondent-workman was legal,
~

t valid and lawful. The workman was not found 'suitable' and,
hence, his services were terminated in accordance with terms
and conditions of the order of appointment and no fault can be
D
found against it.
t 18. On all these grounds, the counsel submitted that the
orders passed by the High Court against the appellants are Ii-
able to be set aside by remitting the matter to the High Court for
fresh disposal in accordance with law. E
19. The learned counsel for the respondent-employee, on
the other hand, supported the decree passed by the lower ap-
pellate Court and confirmed by the High Court. It was urged that
the appeal was ordered to be placed for final hearing and it
was on Board. Appearance of the learned advocates for the F
},. -"'
parties was shown. The counsel for the appellant did not re-
main present. The High Court was, therefore, fully justified in
proceeding with the matter and in dismissing it.
20. The respondent has filed an affidavit in this Court
G
wherein it was mentioned that the arguments were heard on
April 19, 2006 and the judgment was reserved which was pro-
'+- nounced after one week i.e. on April 26, 2006. There was inac-
tion, negligence and carelessness on the part of the appellant
for which the respondent-workman should not suffer. Since no
H
,
588 SUPREME COURT REPORTS [2008] 14 S.C.R.
'\ -
~

A ground, much less sufficient ground, was made out for recalling I-_,._
I

of the order, the application was rightly rejected by the High
Court.
21. Even on merits, the lower appellate Court was right in
allowing the appeal filed by the respondent-employee and in
B declaring the order null and void being stigmatic in nature. It
was, therefore, submitted that the appeal deserves to be dis-
missed. ~
22. Having heard learned counsel for the parties and giv-
c ing anxious considerations to the rival contentions, in our opin-
ion, the appeal_deserves to be allowed. We had called for the
records and proceedings of the case and perused them. From
the record, it is Clear that the second appeal was admitted on
November 11, 1980 and was pending for final hearing. Orders
were passed from time to time between 2004 and 2006.
D
23. The order dated April 19, 2006, passed by the Court
reads as under; -t
R. S.A. No. 2473 of 1980
Present:..: None for the appellant.
E
Ms. Alka Sarin, Advocate for the respondent
***
Arguments heard.

F Order reserved.
April 19, 2006 Sd/- ~"'

Judge
(emphasis supplied)
G 24. From the above order, it is amply clear that on 19th
April, 2006 when the arguments were heard, none was present
for the appellants. .V
25. Then; on April 25, 2006, the Court passed the follow-
ing order: · ·
H
\.

- THE SECRETARY, DEPT. OF H., CHANDIGARH
& ANR. v. RAGHU RAJ [C.K. THAKKER, J.]
589

9'.--1 RS.A.No. 2473 of 1980 A
Present: None.
In this RSA, which was put up before the undersigned for
the first time on 19th April, 2006, it has transpired that the
substantial question of law had not been framed. B
List the appeal for re-hearing for 26.4. 2006.
• ~
April 25, 2006 Sd/-
"

Judge
c
(emphasis supplied)
26. On April 26, 2006, again the matter was placed on the
board and as stated above, it was dismissed in absence of the
appellants or their counsel.
0
27. Now, it cannot be gainsaid that an advocate has no
right to remain absent from the Court when the case of his client
t comes up for hearing. He is duty bound to a~tend the.case in
Court or to make an alternative arrangement. Non-appearan~e
in Court without 'sufficient cause' cannot be excused. Such ab-
E
. sence is not only unfair to the client of the advocate but also
unfair and discourteous to the Court and can never be counte-
nanced.

28. At the same time, however, when a party engages an
advocate who is expected to appear at the time of hearing but F
.>.-A fails to so appear, normally, a party should not suffer on ac-
count of default or non-appearance of the advocate.
29. In Rafiq & Anr. V Munshi/al & Anr., (1981) 2 SCC
788, the High Court disposed of the appeal preferred by the
appellant in absence of his counsel. When the appellant came G
to know of the fact that his appeal had been disposed of in ab-
,
...... sence of the advocate, he filed an application for recall of the
order dismissing the appeal and to permit him to participate in
the hearing of the appeal. The application was, however, re-
jected by the High Court, inter alia, on the ground that there was H
590 SUPREME COURT REPORTS [2008] 14 S.C.R.
-
A no satisfactory explanation why the advocate remained absent. -t- _ ,
The aggrieved appellant approached this Court. ~

'
30. Allowing the appeal setting aside the order passed by
the High Court and remanding the matter for fresh disposal in
accordance with law, this Court stated;
·s

r-
• "The disturbing feature of the case is that under our present
adversary ·1egal system where the parties generally appear
through their advocates, the obligation of the parties is to
_selecthis advocate, brief him, pay the fees demanded by
c him arid then 'trust the learned advocate to do the rest of
the things. The party may be a villager or may belong to
. a rural area and may have no knowledge of the court's
pro_cedure. After engaging a lawyer, the party may remain
supremely confident that the lawyer will look after his
;:__
interest. At th·e time of the hearing of the appeal, the
D J\
personal appearance of the party is not only not required
but hardly useful. Therefore, the party having done
everything in his power to effectively participate in the
+ IJ- ~

proceedings can rest assured that he has neither to go to
the High Court to.inquire as to what is happening in the ,
E .High Court with regard to his appeal nor is he to act as a
.
.,
watchdog of the advocate that the latter appears in the •
matter when it is listed. It is no part of his job. Mr. A.K. b
Sanghi stated that a practice has grown up in the High
Court of Allahabad amongst the lawyers that they remain
F absent when they do not like a particular Bench. Maybe I
he is better informed on this matter. Ignorance in this behalf ~"'
is our bliss. Even if we do not put our seal of imprimatur
- on the alleged practice by dismissing this matter which 'r
may discourage such a tendency, would it not bring justice
G delivery system into disrepute. What is the fault of the
party who having done everything in his power and
expected of him would suffer because of the default of his -~'"
advocate. If we reject this appeal, as Mr. A.K. Sanghi
invited us to do, the only one who would ,suffer would not
H be the lawyer who did not appear but the party whose
THE SECRETARY, DEPT. OF H., CHA~DIGARH 591
& ANR. v. RAGHU RAJ [C.K. THAKKER, J.]

interest he represented. The problem that agitates us is A
whether it is proper that the party should suffer. for the
inaction, deliberate omission, or misdemeanour of his
agent. The answer obviously is in the negative. Maybe
that the learned advocate absented himself deliberately
or intentionally. We have no material for ascertaining that B
aspect of the matter. We say nothing more on that aspect
--1 ofthe matter. However, we cannot be a party to an innocent
I party suffering injustice merely because his chosen
advocate defaulted. Therefore, we allow this appeal, set
aside the order of the High Court both dismissing the C
appeal and refusing to recall that order. We direct that
the appeal be restored to its original number in the High
Court and be disposed of according to law."
(emphasis supplied)
D
31. In Smt. Lachi Tewari & Ors. v. Director of Land
~
Records & Ors, 1984 Supp. SCC 431, rule nisi was issued by
" the High Court in the petition filed in 1976. After seven years,
the matter was placed for hearing of rule nisi in 1983. It was the
first day of reopening of Courts after holidays. The petitioner
had engaged three advocates. None of them, however, was E
available when the matter was called out. The High Court dis-
missed the petition and discharged rule since none appeared
to press the petition for the petitioner. An application was moved
on behalf of the petitioner for recalling of the order and restora-
tion of the petition which was rejected. The petitioner came to ·F
J-)
this Court.
32. Setting aside the order and remanding the matter to
the High Court for fresh disposal and reiterating the law laid
down in Rafiq, this Court said;
G
"The mere narration of facts would suffice to focus attention
~~ on what point is involved in this appeal. The petitioner
obtained rule nisi in 1976 and waited for seven years for
its being heard. Suddenly one day the High Court
consistent with its caiendar fixed the matter for hearing on H
_?:_
592 SUPREME COURT REPORTS [2008] 14 S.C.R.

April 21, 1983. The petitioner had taken extra caution to f---J--
A ,-~

engage three learned Counsels. We fail to see what more
can be expected of him. Further we fail to understand
what more steps should have taken in the matter to avoid
being thrown out unheard".
B 33. In MangiLa/ & Ors. v. State of MP, (1994) 4 SCC
564, an appeal against conviction recorded by the trial Court
was dismissed by the High Court for non-appearance of coun- r '

sel for the appellant due to 'strike' by lawyers. This Court held ,,
~

that dismissal of appeal by the High Court was improper. The
c appeal was directed to be restored to file and be heard on
merits. [see also Tahil Ram /ssardas Sadaranganj & Ors. v.
Ramchand /ssardas Sadaranganj & Anr., 1993 Supp(3)SCC
256].
34. From the case law referred to above, it is clear that
D
this Court has always insisted advocates to appear and argue
the case as and when it is called out for hearing. Failure to do -t
so would be unfair to the client and discourteous to the Court
and must be severely countenanced.At the same time, the Court

E
has also emphasized doing justice to the cause wherein it is
appropriate that both the parties are present before the Court
and they are heard. It has been noted by the Court that once· a
--
r'7

party engages a counsel, he thinks that his advocate will ap-
pear when the case will be taken up for hearing and the Court
calls upon the counsel to make submissions. It is keeping in
F view these principles that the Court does not proceed to hear
~- ...
the matter in absence of the counsel.
35. In the circumstances, in our opinion, the submission of
the learned counsel for the appellants has substance that the
High Court ought not to have decided the appeal in absence of
G
the appellants' counsel.
36. In the present case, the learned advocate, appearing .y
for the appellants, has filed an affidavit in support of the recall
application. In para 1, it was stated;
H
THE SECRETARY, DEPT. OF H., CHANDIGARH 593
& ANR. v. RAGHU RAJ [C.K. THAKKER, J.]

-L-1 "That the above named Regular Second Appeal was A
. pending before this Hon'ble Court for regular hearing and
was listed on various dates from time to time but could not
be decided for one reason or the other and was thereafter
.even de-listed. Lastly, on perusal of the cause list, it has
been noticed that the aforesaid Regular Second Appeal B
was added in the regular matters on 17.04.2006 at Serial
No.304 before the Hon'ble Bench of Mr. Justice S.D. Anand
-1 at page 240 of the Regular Cause List. Alongwith the
case at page 240 of the cause list, the names of the earlier
" cou'nsels for the appellants as well as of the respondent c
were mentioned and the name of the present counsel for
the appellant was mentioned on th!3 next page i.e. at page
241 of the cause list and therefore, the listing of the matter
escaped the notice of the counsel for the appellant.
Consequently, the matter was heard by this Hon'ble Court
D
in the absence of the counsel for the appellant on
19.04.2006. Even on 19.04.2006 (Wednesday), it is only
the serial number of the aforesaid case i.e. Sr. No.304
was mentioned in the Cause List for taking up for hearing .
and therefore even on 19.04.2006, it escaped the
knowledge of the counsel for the appellant in the absence E
of giving of details of the case and the name of the counsel.
It is only when the respondent asked for the implementation
of the. judgment passed by this Hon'ble Court that the
counsel for the appellant immediately thereupon inspected
the cause list and noticed the aforesaid facts and applied F
,l. ~
for the certified copy of the judgment on 07.09.2006 which
is yet to be received and after getting the un-certified copy
of the judgment, is filing the present application for the
recalling of the same."
G
37. In para 2, the deponent stated;

~ "That the non appearance of the appellants/applicants and
their counsel before this Hon'ble Court when the matter
was taken up for regular hearing was totally un-intentional
and for the reasons explained above which are totally bona H
594 SUPREME COURT REPORTS [2Q08} 14 S.C.R.

A fide. Otherwise, the appellants have a good case on merits f----l
as the Regular Second Appeal is against the judgment of ~

reversal and in view of the law settled on the point to the
effect that the Civil Court has no power to grant back
wages with reinstatement as the. specific remedy for the
B grant of the same is provided under the Industrial Disputes
Act, 1947. Although, a specific issue to this effect was
framed before the courts below yet the same some how ~-
escaped the knowledge of this Hon'ble Court and the
counsel for the respondent also failed to point out the
c same in the interest of justice and for fair play. In fact this
was the substantial question of law before this Hon'ble
.Court which remains undecided. Even under Order 41
Rule 17, the appeal in the absence of the appellant ought
to have been dismissed in default instead of being
decided on merits. Therefore, it would be in the interest of
D
justice, i~ the judgment dated 26.04.2006 is.recalled and
the appeal is readmitted for hearing." ~

38. We have already extracted, various orders passed by
the High Court from time to time. It is clear from the order dated
E April 19, 2006 that at the time of hearing of arguments, the
learned counsel for the appellant was not present. The argu-
ments were heard, i.e., the arguments on behalf of the respon-
dent-workman were heard and the order was reserved. But, in
the subsequent order dated April 25, 2006, the learned Judge
F who had heard the matter on April 19, 2006 noticed that a sub-
stantial question of law had not been framed while admitting ~ _.
the appeal. The learned Judge, therefore, ordered listing of the
appeal for rehearing on April 26, 2006 and accordingly, the mat-
ter was posted for hearing on April 26, 2006.
G 39. On that day, i.e. on April 26, 2006, the learned Judge
framed substantial question of law and ·heard learneq counsel
~~
for the respondent-workman. Learned counsel for the appellant
was not present. It is thus clear that substantial question of law
was framed by the Court during the course of hearing of Sec-
H ond Appeal for the first time on April 26, 2oq6.
THE SECRETARY, DEPT. OF H., CHANDIGARH 595
& ANR v. RAGHU RAJ [C.K. THAKKER, J.].

~-1 40. On the facts and in the circumstances in their totality, A.
in our opinion, even though the learned counsel for the appel-
!ant was not present, it would have been appropriate, had the
High Court granted an opportunity to the learned counsel for the
appellant to make his submissions by adjourning the matter.
41. It was also urged that the appeal was admitted in 1980 B
and was pending for final hearing. Such appeal could not have
t been dismissed on merits in absence of learned counsel for
the appellant. In this connection, reference may be mage to
Order XLI of the Code which lays down procedure for hearing
of 'Appeals from Original Decrees'. Rules 1 to 4 deal with 'Form .C
of Appeal', grounds to be taken in 'Memorandum of Appeal'
'Application for Condqnation of Delay', etc. Rules 5 to 8 relate
to 'Stay of Proceedings and of Execution'. Whereas Rules 9 to
15 provide for 'Procedure on Admission of Appeal', Rules 16
to 29 deal with 'Procedure on Hearing'. Once an appeal is ad- D
mitted, Rules 16 onwards of Order XLI would apply. Rule 17
>' provides for 'Dismissal of Appeal for Appellant's Default'. It reads
thus;
17. Dismissal of appeal for appellants' default
E
(1) Where on the day fixed, or on any other day to which
the hearing may be 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.
Explanation-Nothing in this sub-rule shall be construed F
as empowering the Court to dismiss the appeal on the
merits.
(2) Hearing appeal ex parte.-Where the appellant appears
and the respondent does not appear, the appeal shall be
G
heard ex parte.
--, (emphasis supplied)
42. Explanation to Rule 17 of Order XLI was inserted by
the Code of Civil Procedure (Amendment) Act, 1976. Before
H
596 SUPREME COURT REPORTS [2008] 14 S.C.R. •
A insertion of Explanation to Rule 17, there was difference of opin- !-.-.
ion among various High Courts whether an appellate Court had
right to dismiss .an appeal on merits if the appellant fails to ap-
pear. Taking note of cleavage of opini.on, the provision of ~
amended and Explanation was added.
B 43. In Objects and Reasons it was stated;
,___
Clause 90-Sub-clause (viii).-When an Appellate Court I
does not dismiss an appeal summarily, it should fix a date
for the hearing of the appeal. The procedure therefore is
c provided in R1,1le 17 which provides that where on the day
fixed, or on any other day to which the hearing may be
adjourned, the appellant does not appear when the appeal
is called on for hearing, the Court may make an order that
the appeal is dismissed. In this rule the word 'may' shows
that apart from dismissal of the appeal for default, the
D
Court can pass other orders. One such order could be
adjournment of the appeal. There is, however, a conflict of
decision on the question whether, if the appellant does not "'
appear, the Appelalte Court can dispose of the appeal on
the merits. The Allahabad High Court has held that a
E
decision on the merits is permissible. But the other High
Courts have taken a different view. - Having regard to the
conflict of decisions, Rule 17 is being made more explicit
by adding an Explanation thereto to the effect that
dismissal of an appeal on merits would not be
F permissible". ~-
(emphasis supplied)
44. It is true that in the instant case, the appeal before the
High Court was not an Appeal from Original Decree (First Ap-
G peal), but an Appeal from Appellate Decree (Second Appeal).
But Rule 1 of Order XLll which deals with Appeals from Appel-
,t~
late Decrees (Second Appeals) lays down procedure and ex-
pressly states that the Rules of Order XU shall apply so far as
may be to Appeals from Appellate Decrees. Prima facie, there-
H fore, it appears that once an appeal is admitted and is placed
THE SECRETARY, DEPT. OF H., CHANDIGARH 597
& ANR. v. RAGHU RAJ [C.K. THAKKER, J.]

for hearing i.e. hearing on merits, it can be dismissed for de- A
fault but cannot be decided on merits in absence of appellant
(or his advocate).
45. In view of the fact, however, that in our opinion, on the
facts in their entirety, the High Court ought not to have proceeded
to decide the appeal, we hold that the impugned order of the B
High Court is liable to be set aside. In view of this conclusion,
we clarify that we may not be understood to have expressed
final opinion one way or the other as regards interpretation of
Rule 17 of Order XLI read with Rule 1 of Order XLll.
c
46. Since the order passed by the High Court deserves to
be set aside on a short ground and the matter is remitted to the
High Court for fresh disposal in accordance with law, we refrain
from expressing any opinion one way or the other on merits of
the matter as well. As and when the matter will be placed for
0
hearing before the High Court, the Court will pass an appropri-
ate order after hearing the parties.
47. For the foregoing reasons, the appeal is allowed. The
orders passed by the High Court dismissing .the Second Ap-
peal as also dismissing the Recall Application are hereby set E
aside and the matter is remanded to the High Court for fresh
disposal in accordance with law after hearing the parties.
j 48. Since the respondent-workman was required to ap-
pear in this Court pursuant to the notice issued by the Court and
had to incur expenses, in our opinion, ends of justice would be F
met if the appellants are directed to bear costs of the respon-
dent-workman which is quantified at Rs.20,000/-. The said
amount will be paid by the appellants herein by a crossed bank
draft in favour of the respondent-workman within four weeks from
today. The said fact will then be brought to the notice of the High G
Court by the appellant and only thereafter the High Court will
proceed to hear the matter.
49. The appeal is allowed to the extent indicated above.
N.J. Appeal allowed. H