1
ABDUR RAHMAN & ORS
A
v.
ATHIFA BEGUM AND ORS .
. AUGUST 30, 1996
(M.M. PUNCHHI AND K.T. THOMAS, JJ.]
B
Code of Civil Procedure, 1908 :
Order 41 Rule 17 CPC-Appeal-Appellant's counsel absent-High
Cowt adverted to merits of the case-Recorded that all relevant aspects of the C
matter taken into account and 110 ground available for inteiference with the
decision of the Trial Court-On appeal, held : High Court ought not have
dismissed the appeal on merit~lt has transgressed the limit and hence its
order set aside-Matter remitted back to its file for fresh disposal in accord-
ance with law.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11460 of
1996.
From the Judgment and Order dated 26.3.95 of the Karnataka High
Court in F.A.R.F.A. No. 476 of 1992.
R.S. Massey Verma and Shakil Ahmed Syed for the Appellants.
S.S. Naganand and R.P. Wadhwani for the Respondents.
The following Order of the Court was delivered :
Leave granted.
The qualified notice issued to the respondents indicated that this
Court proposed to grant leave against the impugned judgment and order
D
E
F
of the High Court and on allowing the appeal, was expecting to remit the
matter back to the file of the High Court for disposal of the matter on its G
merits. The respondents' learned counsel has been confronted with the
proposition that though the High Court could have dismissed the appeal
in default in the absence of the appellants' counsel, it could . not have
adverted to the merits of the case. Here, the High Court has recorded that
all relevant aspects of the matter have been taken into account in order to H
391
392
SUPREME COURT REPORTS (1996) SUPP. 5S.C.R.
A hold that there was no available ground for interference with the decision
of the Trial Court. This was an exercise with which the High Court should
have been well-advised not to indulge in at the stage or Order 41 Rule 17
CPC. The Explanation to Order 41 Rule 17(1) CPC says that nothing in
this sub-rule shall be construed as empowering the Court to dismiss the
B appeal on the merits. The High Court havi_ng transgressed that limit, we
have therefore no option but to allow the appeal, set aside the impugned
judgment and order of the High Court and put the matter back to its file
for fresh disposal in accordance with law. Ordered accordingly. No costs.
G.N.
Appeal allowed.
Lex