LexHARBANS PERSHAD JAISWAL (D) BY LRS. versus URMILA DEVI JAISWAL (D) BY LRS.
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(2014] 5 S.C.R. 291 HARBANS PERSHAD JAISWAL (D) BY LRS. A v. URMILA DEVI JAISWAL (D) BY LRS. (Civil Appeal No. 4656 of 2014) ' APRIL 21, 2014 I [SURINDER SINGH NlJJAR AND A.K. SIKRI, JJ.] Code of Civil Procedure, 1908 - Or. XL/ rr. 17, 19 and ~1 - Hearing'of appeal ex-parte - Cross-appeals - During hearing of the appeals, one of the parties not represented - C Decision in the appeals against that party on merit - Plea of the unsuccessful party that the appeals could not have been decided on merit and at the most could have been dismissed for default - Held: An appeal can be heard on merits if the respondent is unrepresented, but if the appellant is o unrepresented, it can be dismissed only in default - Ln the present cases, the appeal, in which the unsuccessful party was respondent, could have been decided on merit - But the appeal in which the party was appellant could have been dismissed only in default and not on merit - However, since E. the High Court has given categorical finding that no sufficient cause for non-appearance is shown, there is no reason to recall the order. F The respondent filed a suit seeking partition of two properties claiming half share in each i.e. Schedule A and Schedule B properties. Trial court decreed the suit in respect of Schedule B property, but dismissed the same qua Schedule A property. Cross-appeals were filed before High Court. The counsel for the appellant did not appear. Hence, both the appeals were decided on merit ex-parte. G The appellants filed petitions seeking setting aside of the ex-parte orders. High Court dismissed the petitions. Hence the present appeals. - 291 292 SUPREME COURT REPORTS [2014] 5 S.C.R. A The .appellant co,r;iten~ed that the appeal filed by the _.appellant irithe High Court could not have been dismissed on merit!! wh~n .the appellant remained unrepresented and at niost, it could have been dismissed only in default. B , Dismissing the appeals1 the Court . . HELO: 1. Where the appeal is dismissed in default ·under Rule 17 of Order_XLI CPC, remedy is provided to the appellant under Rule 19 for re-admission of the appeal C on moving an application and showing that he was prevented by any sufficient cause from appearing, when the appeal was called on for hearing. Likewise, Rule 21 gives an opportunity to the respondent to move similar application for rehearing of the appeal by demonstrating D sufficient cause for non-appearance, if the appeal was heard in his absence and ex-parte decree passed. [Para 12] [299-B-C] 2. Thus, it is clear that whereas appeal can be heard E on merits if the respondent does not appear, in case the appellant fails to appear, it is to be dismissed in default. Explanation makes it clear that the court is not empowered to dismiss the appeal on the merits of the case. As different consequences are provided, in case the appellant does F not appear, in contradistinction to a situation where the respondent fails to appear, as a fortiori, Rule 19 and Rule 21 are also differently worded. Rule 19 deals with re- admission of appeal "dismissed for default", where the appellant does not appear at the time of hearing, Rule 21 talks of "re-hearing of the appeal" when the matter is heard G in the absence of the respondent and ex-parte decree made. [Para 13] [299-C-F] 3. In the present cases, in so far as appeal of the respondent before High Court is concerned, the same H has been allowed ex-parte as nobody appeared on behalf HARBANS PERSHAD JAISWAL (D) BY LRS. v. 293 URMILA DEVI JAISWAL (D) BY LRS. of the appellants. This course of action was available to A the High Court as sub-rule (2) of Order XLI Rule 17 categorically permits it. Though the appellants moved application for setting aside this order, the same was dismissed on the ground that no reasonable or sufficient cause for non-appearance was shown. Therefore, this B part of the order of the High Court is without blemish and is not to be interfered with. Appeal there-against is dismissed. [Para 16) [300-H; 301-A-B] 4. In so far as appeal of the appellants against grant of preliminary decree in respect of Schedule B property C is concerned, it could not have been heard on merits in the absence of the appellant. The Court could only dismiss it in default. However, in view of Rule 19 of Order XLI CPC, the appellants were supposed to show sufficient cause for their non-appearance. The High Court
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