Second appeal should not be dismissed on merit for reasons of non-appearance of lawyer

The Supreme Court has held, in the absence of counsel for the appellant, appeal may, if the Court deems fit, be dismissed in default but the same cannot be heard and decided on merits.

The above-mentioned observation was pronounced by the Supreme Court in the matter of Sai Prabodh Ch. Das and Anr Vs.  Mahamaya Das and Ors (Civil Appeal No.  9407 of 2019), dated 13.12.2019

Issue

In the present case, the second appeal was filed before the Guwahati High Court. On the date of hearing 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. After consideration of the materials on record, the High Court dismissed the appeal on merits.

Challenge

The question for consideration before the Supreme Court in this case was whether the High Court is justified in dismissing the second appeal on merits in the absence of the learned counsel for the appellants.

Held

The Supreme Court first referred to Order XLI Rule 17(1) of Code of Civil Procedure, 1908, which provides for dismissal of appeal for appellant’s default. The Explanation to sub rule (1) of Rule 17 which was added by Act 104 of 1976 clarifies that the provision expressly applies in cases where the appellant does not appear. The Court has no power to dismiss the appeal on merits, thus, Order XLI 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.  The Supreme Court further observed that 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.

The Supreme Court also relied upon the legal position provided in the case of Ghanshyam Dass Gupta v. Makhan Lal, 2012 (8) SCC 745, where it was held that prior to 1976 conflicting views were expressed by the different High Courts in the country as to the purport and meaning of sub rule (1) of Rule 17 of Order XLI 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. The legislature, therefore, in its wisdom, felt that it should clarify the   position   beyond   doubt. Consequently, the Explanation to sub rule (1) of Rule 17 of Order XLI CPC was added by Act 104 of 1976, making it explicit that nothing in sub rule (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.

Therefore, the Supreme Court concluded that the order of the High Court has been made clearly in contravention of Rule 17(1) of Order XLI of the CPC and was set aside.