Affidavit of service filed today is taken on record.
Heard learned counsel for the appellants as well as Mr.Ratnesh Chandra, learned counsel appearing for the respondent no.1.
In spite of service of notice no one has put in appearance on behalf of the respondent no. 2.
This second appeal has been filed under Section 100 C.P.C. against the judgment and decree dated 28.11.2013 passed in Civil Appeal No. 76 of 2011; Jiya Lal & others Vs. Ayodhya & another by which the 1st appellate court under Section 96 C.P.C. has dismissed the appeal preferred against the judgment and decree dated 18.10.2011 passed by the Civil Judge (J.D.), South, Unnao in Civil Suit No. 77 of 2010.
The appeal has been admitted vide order dated 25.2.2014 on the following substantial question of law:
(a) Whether appellate court was justified in dismissing the appeal on merits in the absence of appellants on the face of Order 41 Rule 17(1) explanation?
The Order 41 Rule 17 C.P.C., as existing today after the amendment vide Act No. 104 of 1976 (w.e.f. 1.2.1977), reads as under:
"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, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(Explanation.- Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.) (2) Hearing appeal ex parte.- Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."
The learned 1st appellate court by the impugned order has decided the appeal under Section 96 C.P.C. on merits in the absence of the appellants.
Learned counsel for the appellants submits that in view of the explanation to Order 41, Rule 17 (1) C.P.C., the 1st appellate court has fallen in error by deciding the appeal on merits in the absence of the appellants. In case no one was present to press the appeal the only option left with the appellate court was to dismiss the appeal in default instead of deciding the same on merits.
In support of his submissions, learned counsel for the appellants has placed reliance on the judgment of the Apex Court in the case of Ghanshya Dass Gupta Vs. Makhan Lal; 2012 (8) SCC 745, wherein it has been held that the Courts below cannot go into the merits of the case if there was no appearance on behalf of the appellant. The relevant paragraphs 2, 9 & 10 in Ghanshya Dass Gupta (Supra), on reproduction read as under:
2. 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 appellant, in view of the explanation to Order 41 Rule 17(1) of the Code of Civil Procedure. (CPC).
9. Rule 17 (1) of Order 41 deals with the dismissal of appeal for appellant?s default. The above mentioned provision, even without explanation, if literally read, would clearly indicate that if the appellant does not appear when the appeal is called for hearing, the court has to dismiss the appeal. The provision does not postulate a situation where, the appeal has to be decided on merits, because possibility of allowing of the appeal is also there, if the appellant has a good case on merits; even if no body had appeared for the appellant. 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 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 appellant?s default. Conflicting views raised by the various High Courts gave rise to more litigation. The Legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, Explanation to sub-rule (1) of Rule 17 of Order 41 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 un-represented on the day fixed for hearing the appeal. 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 non-appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant.
10. We may, in this connection, refer to a judgment of this Court in Abdur Rahman and Others v. Athifa Begum and Others (1996) 6 SCC 62, wherein the scope of explanation to Rule 17(1) of Order 41 CPC came up for consideration. While interpreting the said provision, this Court took the view that the High Court could not go into the merits of the case if there was no appearance on behalf of the appellant.We also endorse that view.
Mr. Ratnesh Chandra, learned counsel appearing for respondent no. 1 has very fairly agreed that after the amendment the Court has no option but to dismiss the appeal in default i.e. for want of prosecution in case no one has appeared on behalf of the appellants to press the appeal on merits.
The perusal of Order 41, Rule 17 C.P.C. clearly indicates that where on the day fixed or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the Court may make an order that the appeal be dismissed. The explanation to Order 41, Rule 17 (1) C.P.C. provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. The explanation to Order 41, Rule 17 (1) C.P.C. clearly makes that the appellate Court has to dismiss the appeal for non-prosecution and in default in case no one has appeared on behalf of the appellant to press the appeal on merits.
In view of above, the second appeal is allowed.
The judgment and order dated 28.11.2013 passed by the Additional District Judge, Unnao in Civil Appeal No. 76 of 2011, is hereby set aside. The matter is remanded back to the 1st appellate Court to decide the same afresh in accordance with law expeditiously, as early as possible.
It is, however, made clear that this Court has not addressed itself on the merits of the case.
Order Date :- 8.8.2016 Arjun/-