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Report No. 54

Order 41, rule 17 and disposal on merits in absence of the appellant

41.41. When an appellate Court does not dismiss an appeal summarily, it should fix a date for the hearing of the appeal and notice of the date should be affixed in the appellate Court house and should be served on the respondent or on his pleader, under Order 41, rules 12 and 14. The procedure thereafter is provided in Order 41, rule 17, which lays down that "Where on the day fixed, or any other day to which the hearing may be adjourned, the appellant dries not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed." In this rule, the word 'may' shows that, apart from dismissal of the appeal for default, the court can pass other orders. One such order could be adjournment of the appeal.

41.42. But there is a conflict of decisions on the question whether, if the appellant does not appear, the appellate court can, under this rule, dispose of the appeal on the merits. The Allahabad view1 is that a decision on the merits is permissible.

1. Gajram v. Ram Rati, AIR 1965 All 547 (549) (Desai and Pathak JJ.).

41.43. Answering the query-how an appeal can be disposed of on merits without the appellant or his counsel being heard, the Court observed "I see no anomaly or even difficulty in this. The appellate court can read the judgment appealed from and the memorandum of appeal and hear the respondent or his counsel and then can certainly decide on merits whether the appeal should be dismissed or not. If the appeal is a good one and the respondent or his counsel is unable to show any cause for its being dismissed the appellate court can certainly allow it on merits in spite of the appellant's absence. Similarly, if it finds that the grounds of appeal have no substance, it can dismiss it on merits. Orally hearing a party or his pleader is not an essential ingredient of a decision on merits and the appeal in the instant case could have been dismissed by the learned Additional Judge on merits in spite of the appellants' absence."

41.44. A later Allahabad case1 takes the same view.

1. Babu Ram v. Bhagwan Das, AIR 1966 All 1 (FB).

41.45. As to Order 41, rule 30, the Allahabad High Court1 deals with the position thus:

"Order XLI, rule 30 no doubt makes the hearing of the parties or their pleaders a condition precedent to the pronouncing of judgment, but this condition has been laid down for the benefit of the parties and in their own interest, and its fulfilment is, by its very nature, dependent upon their volition and co-operation. The parties cannot, therefore, by refusing to avail of the benefit and by withholding their co-operation incapacitate the Court for using that power to the exercise of which the condition has been attached.

If the opportunity for the fulfilment of the condition has been allowed, although it has not been availed of, the condition will be deemed to have been complied with and the Court will acquire the competence to exercise the power conferred upon it as if the condition had been fulfilled. If this were not so, the parties would, by their own omission to avail of the opportunity granted to them, be able to create an insurmountable impediment in what the Court has been authorised to do by the statute and render the power given to it totally ineffective and nugatory."

1. Babu Ram v. Bhagwan Das, AIR 1966 All 1 (10), para. 45.

41.46. Other/High Courts, however, take a different view. The most important case in support of the view that the court has no power to dismiss an appeal on the merits (if the appellant does not appear at the hearing), is a Madras one1. Mostly, the line of reasoning adopted in the Madras case has been accepted in the decision of other High Courts.

1. Musalirakth Muhammad v. Manaviakrama, AIR 1923 Mad 13.

41.47. The facts of the Madras case were as follows:-

On the date of hearing of an appeal before the Subordinate Judge, the appellant was not present, but a Vakil holding a Vakalatnama from him was present, and applied for an adjournment. The adjournment was refused, and the Vakil thereupon informed the court that as he had no instructions or papers, he could not argue the appeal; he took no further part in the proceedings. The Subordinate Judge, instead of dismissing the appeal for default, considered the evidence bearing on the appellant's claim with reference to the memorandum of appeal, and dismissed the appeal on the merits with costs.

41.48. It was contended before the High Court (on behalf of the appellant) that it was not competent for the Subordinate Judge to inquire into the merits of the case in the absence of the appellant and his pleader, and that he could deal with the appeal only in the manner provided by Order 41, rule 17(1). This contention was accepted by the Divisional Bench which heard the case, and the judgment of the Subordinate Judge was held to be without jurisdiction. Both the Judges constituting the Bench referred to the change from the words, 'shall be dismissed' in section 556 of the Old Code1, to the words "the Court may make an order that the appeal be dismissed" in Order 41, rule 17(1) of the present Code, but they were of the view that in spite of the change, the Subordinate Judge had no power to go into the merits of the appeal. Under the previous Code, the Court had considered it to be undesirable2 to dismiss the appeal on the merits.

1. Section 650, C.P.C. 1882.

2. Mahesh Chunder Bose v. Thakur Das, 20 Suth WR 425.

41.49. According to most High Courts, dismissal on the merits is illegal1, when the appellant is not present. In a Punjab2 case it was held that the remedy is an application for restoration under Order 41, rule 19.

1. (a) Taher Sheikh v. Otaruddin Hawaldar, AIR 1929 Cal 475.

(b) Mosafir Whoton v. Bademi, AIR 1963 Pat 1 (overruling AIR 1921 Pat 325).

(c) Digendre Chandra v. Radha Bellai, AIR 1953 Assam 191.

(d) 1968 Andh WR 356, cited, in the Yearly Digest.

2. Kundha Singh v. Punjab State, AIR 1962 Punj 82 (P.C. Pandit J.).

The Code of Civil Procedure, 1908 Back

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