GHANSHYAM DASS GUPTA versus MAKHAN LAL

Citation: [2012] 8 S.C.R. 153 · Decided: 21-08-2012 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN, DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2012] 8 S.C.R. 153 
GHANSHYAM DASS GUPTA 
v. 
MAKHAN LAL 
(Civil Appeal No. 5950 of 2012) 
AUGUST 21, 2012 
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.] 
A 
B 
Code of Civil Procedure, 1908 - Order 41 Rule 17 (1) 
Explanation - Scope of - Dismissal of appeal on merit by 
High Court, when there was no appearance on behalf of the C 
appellant -
Held: In view of the explicit language of 
Explanation to Order 41 Rule 17(1), High Court could not 
have gone into the merits of the case, if there was no 
appearance on behalf of the appellant - Direction to High 
Court to dispose of the appeal in accordance with law. 
D 
Abdur Rahman and Ors. vs. Athifa Begum and Ors. 
(1996) 6 SCC62: 1996 (5) Suppl. SCR 391 - relied on. 
Case Law Reference: 
1996 (5) Suppl. SCR 391 
Relied on 
Para 9 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
5950 of 2012. 
From the Judgment & Order dated 13.1.2012 of the High 
Court of Delhi at New Delhi in RFA No. 664 of 2003. 
Rakesh Dahiya, Gagan Deep Sharma, Preeti Singh, 
Vikram Gulia for the Appellant. 
The following Order of the Court was delivered 
ORDER 
Leave granted. 
1. The question that arises for consideration in this case 
is whether the High Court was justified in deciding the appeal 
on merits when there was no appearance on behalf of the 
153 
E 
F 
G 
H 
154 
SUPREME COURT REPORTS 
[2012) 8 S.C.R. 
A appellant, in view of the explanation to Order 41 Rule 17(1) of 
the Code of Civil Procedure. (CPC). 
2. The appellant herein had engaged a lawyer for 
conducting his appeal before the Delhi High Court. The appeal 
was admitted and was pending for adjudication. Later, the 
8 lawyer of the appellant was elevated as a Judge of the Delhi 
High Court and hence he returned the files to the appellant. The 
appellant later engaged another lawyer to conduct the case. 
However, due to the mistake by the clerk, the Vakalatnama of 
that advocate could not be filed and hence the name of the 
C newly engaged lawyer did not figure in the cause list. The appeal 
came up for final hearing on 13.1.2012. representation was 
made by a lawyer on behalf of the previous lawyer stating that 
the case files had already been returned to the party. 
Consequently, there was no effective appearance on behalf of 
D the appellant before the High Court. In fact, there was no 
appearance on behalf of the respondent as well. 
3. Learned Judge, however, proceeded to consider the 
appeal on merits, without the assistance of learned counsel on 
either side. By a detailed judgment, the appeal was dismissed 
E on 13.1.2012 stating as follows: 
"6. In view of the above, there is no merit in the appeal 
inasmuch as not only because the appellant/defendant was 
guilty of breach of contract but also because the appellant/ 
F 
defendant did not plead and prove the orfeiture of earnest 
money or any loss having been caused to him. The 
appellant/defendant was, therefore, liable to refund the 
amount which he received under the Agreement to Sell. 
7. 
In view of the above, there is no merit in the appeal 
G 
which is accordingly dismissed leaving the parties to bear 
their own costs." 
H 
4. Aggrieved by the judgment of the High Court, this 
appeal has been preferred. 
5. Shri Rakesh Dahiya, learned counsel appearing on 
GHANSHYAM DASS GUPTA v. MAKHAN LAL 
155 
behalf of the appellant, submitted that the High Court was not 
A 
justified in deciding the appeal on merits since there was no 
representation on behalf of the appellant. Learned counsel 
pointed out that the only course open to the Court was either 
to dismiss the appeal on default or adjourn the same, but not 
to decide the matter on merits, in view of the explanation to 
B 
Order 41 Rule 17(1) CPC. 
6. Learned counsel appearing on behalf of the respondent 
supported the judgment of the High Court contending that the 
appeal was of the year 2003 and came up for final hearing after 
a period of nine years, and the High Court was justified in 
C 
deciding the matter on merits even if there was no appearance 
on behalf of the appellant. 
7. We are, in this case, called upon to consider whether 
the High Court was justified in deciding the appeal on merits 
in the absence of any representation on behalf of the appellant, 
D 
in view of Explanation to Order 41 Rule 17(1) CPA. The said 
provision is given below for easy reference: 
"Rule 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, th

Excerpt shown. Read the full judgment & AI analysis in Lexace.