The apex court of the country held that no HC can dismiss a second appeal based on merits, in cases where the appellant is not represented on the date of hearing. In case of the absence of the appellant on the specified date, the court may dismiss the case for non-appearance but not for thr merit of th case, the SC observed.
In the case of Prabodh Ch. Das and Mahamaya Das, the counsel of the appellants failed to appear. Hence the court decided the case on its merits and dismissed it. The appeal in front of the SC pressed onto the provisions of Order XLI Rule 17(1) of the CPC. Regarding this, the SC said that “Explanation to subrule (1) of Rule 17 was added by Act 104of1976. Prior to 1976 conflicting views were expressed by differentHigh Courts in the country as to the purport and meaning of subrule (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.”
The bench also referred to the judgements in Ghyansham Dass Gupta v. Makhan lal and the case of Abdur Rahman v. Athifa Begum wherein the judgements were held on the same note that HC could not deal with the merits of the case when the appellant was absent on the due date.