Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9407 OF 2019
(Arising out of S.L.P. (Civil) No. 14564 of 2015)
SRI PRABODH CH. DAS AND ANR. … APPELLANTS
VERSUS
MAHAMAYA DAS AND ORS. … RESPONDENTS
J U D G M E N T
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 absence of the learned counsel for the appellants.
3. The appellants herein are the defendants in the suit T.S. 10 of
Signature Not Verified
2000 on the file of the Civil Judge (Junior Division) Khowai and the
Digitally signed by
NEELAM GULATI
Date: 2019.12.13
15:50:38 IST
Reason:
respondents are the plaintiffs. The plaintiffs filed the said suit for a
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declaration of their title, recovery of possession and for mesne
profits. 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 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 on 21.01.2015, learned counsel for the
appellants/defendants was not 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.
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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, 1908 (‘CPC’ for short). On the other hand,
learned counsel for the respondents has supported the judgment of
the High Court.
It is not disputed that the matter was listed for hearing on
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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 behalf. Therefore, the High Court proceeded to decide
the appeal on merits itself.
Order 41 Rule 17(1) of the Code of Civil Procedure is as under:
8.
“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 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.
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[ Explanation. Nothing in this subrule shall
be construed as empowering the Court to dismiss
the appeal on the merits.]”
9. Explanation to subrule (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 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 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
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Rahman and others v. Athifa Begum and others wherein it was
held that High Court cannot go into the merits of the case when
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Ins. by CPC (Amendment) Act 104 of 1976, s 87, (w.e.f. 1-2-1977)
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1996 (6) SCC 62
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there was nonappearance of the appellant. In Ghanshyam Dass
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Gupta v. Makhan Lal this Court has reiterated the legal position
as under:
“Prior to 1976, conflicting views were expressed by the
different High Courts in the country as to the purport
and meaning of subrule (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 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 subrule (1) of Rule 17 of Order 41 CPC
was added by Act 104 of 1976, making it explicit that
nothing in subrule (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 to the appellant to convince the appellate
court that there was sufficient cause for nonappearance.
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
the appeal on merits after noticing “…. On this date a request for
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2012 (8) SCC 745
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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 argue the matter and no request has been made on his
behalf. I, therefore, 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.
However, there will be no order as to costs.
……….……………………J.
(S. ABDUL NAZEER)
….…………………………J.
(SANJIV KHANNA)
New Delhi;
December 13, 2019.