JUDGMENT D. K. Seth. J.
1. The order dated 22nd February. 1992, passed by the Additional District Judge, VIIIth Court, Bulandshahr passed in Misc. Case No. 1 of 1992, has been challenged. Mr. Vishnu Sahai, learned counsel for the petitioner contends that the appeal was decided on merit without hearing the counsel for the appellant who was absent on the date fixed for hearing. Since Order XLI. Rule 17, sub-rule (2), Explanation provides that nothing in sub-rule (1), shall be construed to empower the Court to dismiss an appeal on merits in the absence of the appellant or its counsel, therefore, even if the appeal was dismissed on merit, yet it was in fact an order under Order XLI. Rule 17, dismissing the appeal in default for all practical purposes. Therefore, the same could have been restored under Order XLI. Rule 19. only after showing sufficient cause for non-appearance of the appellant. In the present case, the application was an application under Section 151 of the Code of Civil Procedure. In the said application, sufficient ground was not disclosed. The appellate court while passing the order dated 22nd February, 1992, did not advert to the sufficient cause. There was no finding with regard to sufficient cause. Therefore, the order cannot be sustained. According to him. an application under Section 151 is not amenable in view of Order XLI, Rule 19, providing specific procedure for the purpose. On this ground, he prays that, the order dated 22nd February. 1992, be set aside.
2. I have heard Mr. Vishnu Sahai, learned counsel for the petitioner at length.
3. In the present case, it appears from order dated 22nd February. 1992. that the lower appellate court while passing the said order had examined the records of the case and had found that sufficient opportunity was given to the counsel for appellant, yet neither the appellant nor his counsel had appeared in any of the date fixed for argument. It is also found that the counsel for the appellant was given opportunity to submit its written submission or argument. But no written submission or argument was filed. Therefore, on the date when the appeal was fixed for hearing on 17th February, 1988, no written submission was filed and. therefore, the appeal was decided without hearing the counsel for the appellant and without written submission filed by him. It is also found that though the counsel for the respondent had made his argument but at no point of time, the counsel for the appellant was ever heard.
4. Admittedly, successive opportunity was given but then neither the appellant nor his counsel was present on the date fixed for argument and, therefore, without hearing the counsel for the appellant, the appeal was decided on merit after hearing the counsel for the respondent. Thus the situation comes squarely within sub-rule (1) of Rule 17. Order XLI of the Code of Civil Procedure. Order XLI, Rule 17, sub-rule (1). provides that "where on the day fixed, or 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". An Explanation has been added to-sub-rule (1) to the effect that "nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on merits."
5. Thus, when in the present case, the appellant was absent on the date fixed for hearing of appeal and his counsel also did not appear to argue the case, the appellate court ought to have dismissed the appeal in default. By reason of the Explanation of sub-rule (1) of Rule 17. Order XLI, the appellate court was not empowered to dismiss the appeal on merits. In the present case, the appeal has been dismissed on merit in the absence of the appellant and his counsel after hearing the counsel for respondent. Thus, the orders squarely attract the mischief of Explanation of sub-rule (1) of Rule 17. Order XLI. Since tt is a question of Jurisdiction which results into lack of jurisdiction, the same is so material when such order becomes void, ab initio and a nullity and has no existence in the eye of law and as such non est.
6. The appeal having been decided on merit and having not been dismissed in default, the same does not come within the scope and ambit of Order XLI. Rule 17 (1). The Explanation having referred to empowerment of the Court means that the Court cannot assume jurisdiction to decide the appeal on merit in the absence of the appellant or his counsel. Thus. It creates lack of jurisdiction. When an order is passed which is without Jurisdiction, the same is definitely nullity and void.
7. Thus, the order having not been an order within the meaning of Rule 17 (1), Rule 19, could not be applied. Order XLI. Rule 19 can be applied only to recall an order of dismissal of an appeal in default. As observed earlier. It is not an order within the meaning of Order XLI. Rule 17 sub-rule (1) or (2), therefore Rule 19 has no manner of application. The only means available to the appellant was to make an application under Section 151 which has since been made and. therefore, when the appeal is dismissed on merit in the absence of the appellant or his counsel, instead of dismissing the same on default, the same can be restored only by means of an application under Section 151 of the Code. Since it is a mistake on the part of the Court itself. It is the Court who has to recall its order. Particularly, in view of the fact that the order is a nullity. void and non est, the Court is empowered to recall such order on an application being made under Section 151 of the Code.
8. The learned appellate court had relied on various decisions cited at the Bar Which are referred to in the judgment. The same view finds support from the analogy of the ratio laid down in the decision so cited.
9. In the circumstances, I do not find any reason to interfere with the order dated 22nd February. 1992. setting aside the order of dismissal of appeal on merit. The writ petition, therefore, falls and is, accordingly, dismissed. However, there will be no order as to costs.
10. It is submitted by the learned counsel for the respondent that appeal has not yet been decided though a long time has passed and that there was no interim order Subsisting. In such circumstances, the appeal be decided as early as possible preferably within a period of six months from the dale a copy of this order is produced before the Court. Let a copy of this order be communicated to the lower appellate court by the office within a period of one month from today.