SRI PRABODH CH. DAS AND ANR. versus MAHAMAYA DAS AND ORS.

Citation: [2019] 15 S.C.R. 19 · Decided: 13-12-2019 · Supreme Court of India · Bench: S. ABDUL NAZEER · Disposal: Disposed off

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Judgment (excerpt)

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 [2019] 15 S.C.R. 19
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SRI PRABODH CH. DAS AND ANR.
v.
MAHAMAYA DAS AND ORS.
(Civil Appeal No. 9407 of 2019)
DECEMBER 13, 2019
[S. ABDUL NAZEER AND SANJEEV KHANNA, JJ.]
Code of Civil Procedure, 1908 – Explanation to r.17(1) of
Or.41 – Dismissal of appeal for appellant’s default – The matter
was listed for hearing before the High Court, when the matter was
taken up, the counsel for appellants/defendants was not present to
argue the matter and no request was made on his behalf – The High
Court proceeded to decide the appeal on merits itself – Propriety of
– Held: Not proper – Explanation to sub-rule (1) of r.17 of Or.41
clarifies 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 – 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 – Therefore, impugned judgment of the High Court set aside
and matter remitted to the High Court for fresh disposal in
accordance with law.
Disposing of the appeal, the Court
HELD: 1. Explanation to sub-rule (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.
[Para 9][21-G; 22-A]
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SUPREME COURT REPORTS
[2019] 15 S.C.R.
Abdur Rahman and others v. Athifa Begum and others
(1996) 6 SCC 62 : [1996] 5 Suppl. SCR 391;
Ghanshyam Dass Gupta v. Makhan Lal (2012) 8 SCC
745 : [2012] 8 SCR 153 – relied on.
Case Law Reference
[1996] 5 Suppl. SCR 391
relied on
Para 10
[2012] 8 SCR 153
relied on
Para 10
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9407
of 2019.
From the Judgment and Order dated 21.01.2015 by the High Court
of Tripura at Agartala in R.S.A. No. 45 of 2006.
Pijush K. Roy, Ms. Kakali Roy, Rajan K. Chourasia, Dr. Nirmal
Chopra, Advs. for the appearing parties.
The Judgment of the Court was delivered by
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
2000 on the file of the Civil Judge (Junior Division) Khowai and the
respondents are the plaintiffs. The plaintiffs filed the said suit for a
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
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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.
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 con

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