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Report No. 54

Amendment desirable to remove conflict

41.50. Having regard to the conflict of decisions, it is desirable to make the wording of rule 17 more explicit. Theoretically, a dismissal on merits should be permissible.

41.51. No doubt, the following passage from a Supreme Court case1 (in reference to Order 41, rule 30) may lend support to the Allahabad view.

"Where the appellant and his pleader are not prepared to address the Court, there is no hearing and, therefore, nothing is shown to the Appellate Court as to why it should interfere with the decision of the Court below. The burden of proof is on an appellant to show that the decision which he appeals from was wrong and where he does not address the Court at all, it appears to us that there is no point raised for determination and therefore, it is not necessary to give a decision on any point or the reasons for the decision. It is sufficient for the Court to pass an order of dismissal for default. Such an order does not necessarily mean that the appeal is dismissed for default of appearance. In such circumstances, the order means that the appeal is dismissed for default of proof".

However, these observations should not be taken as necessarily implying that a disposal on the merits is necessary where the appellant is absent. It is not necessary for the Court to give a decision on merits, though it is open to it to do so.

1. Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146: (1963) 2 SCR 733.

Recommendation

41.52. Moreover, in practice a decision on merits in the appellant's absence, is rarely given, and therefore, the better course would be to preclude a decision on merits in such cases. We are of the view that the Code should be amended on the above lines.

Accordingly, we recommend that the following Explanation should be added in Order 41, rule 17(1):

"Explanation-Nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits"

Order 41, rule 18

41.52A. A point concerning Order 41, rule 18 was discussed in the earlier Report1 as follows:-

"The Fourteenth Report recommended the adoption by High Courts of some local Amendment2, whereunder, if on the day of hearing of the appeal, it is found that the notice for the respondent has not been served and the appellant fails to deposit the expenses of serving the notice again, the court has power to order that the appeal be rejected. This is a matter of detail which may be left to the High Courts."

1. 27th Report, note on Order 41, rule 18.

2. 14th Report, Vol. I.

41.52B. We are, however, of the view that it is desirable to adopt the amendment suggested in the 14th Report and insert it in the Code. Such a provision will, to some extent, expedite disposal of appeals.

Recommendation

41.53. Accordingly, we recommend that Order 41, rule 18, should be revised as follows:-

"18. Where, on the day fixed, or on any other day to which the hearing may be adjourned, it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to deposit, within the period fixed, the sum required to defray the cost of serving the notice, or, if the notice is returned unserved, to deposit within any subsequent period fixed, the sum required to defray the costs of any further attempt to serve the notice, the court may make an order that the appeal be dismissed:

Provided that no such order shall be made although the notice has not been served upon the respondent, if on any such day the respondent appears when the appeal is called on for hearing."

Order 41, rule 18 and refund of process fees

41.54. A point relevant to Order 41, rule 18 and refund of fees may now be considered.

Refund of process fees where appeal dismissed without notice

41.55. A recommendation had been made in the Fourteenth Report1-2 for an amendment allowing the refund of process fees where an appeal is dismissed without notice to the other party. The Commission, however, in its Report on the Code3 felt, that this should be left to be dealt with by the practice of the Courts. No amendment was, therefore, suggested.

1. 14th Report, Vol. I.

2. See also Order 41A, rule 2, inserted in Madras.

3. 27th Report, note on Order 41, rule 18 and refund.

41.56. We agree with the view taken in the Report on the Code, but for a different reason. As process fees are paid after admission of the appeal, it is not necessary to provide for refund when the appeal is dismissed summarily.

41.57. For the above reason, we recommend no change in the existing rule.



The Code of Civil Procedure, 1908 Back




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