IMPORTANT POINT
If on the date fixed for hearing of second appeal before High Court, appellant or his advocates fail to appear, only course open to High Court is to dismiss appeal for non-prosecution.

JUDGMENT

Syed Shah Mohammed Quadri, J.-Leave is granted.

2. These appeals are from the judgments and orders of the High Court of Judicature at Patna dismissing appellants Second Appeal No. 24 of 1996, on August 12, 1998 and the Review Petition in MJC No. 2463 of 2000 on February 2, 2001.

3. The appellants were the defendants in the suit in which their eviction was sought by the respondents-plaintiffs from an area of 47 Kari comprising of house and Golla situated in Plot Nos. 797 and 798 appertaining to khata No. 131 under Tauzi No. 414 Thana No.239 in Arrah Municipal Area (for short, the suit premises ) on the grounds of bona fide personal necessity and default in payment of rent under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (for short, the Act ). The suit was decreed by the Trial Court and the First Appeal filed by the appellants was dismissed on September 6, 1995. The appellants then filed Second Appeal No. 24 of 1996 in the High Court of Judicature at Patna. When the case came up before the High Court on August 12, 1998, nobody was present on behalf of the appellants. However, the High Court dismissed the Second Appeal on merits. The appellants then filed the aforementioned review petition which was also dismissed on February 2, 2001. The said judgments and orders are brought under challenge in these appeals by special leave.

4. On July 27, 2001, this Court issued notice limited to the question as to why the order under challenge should not be set aside and the matter remitted to the High Court for fresh disposal.

5. Mr. Akhilesh Kumar Pandey, the learned counsel for the appellants, contended that the High Court had erred in disposing of the Second Appeal on merits in the absence of the counsel for the appellants and not reviewing the order passed in the Second Appeal.

6. A perusal of the judgments under challenge discloses that the High Court dismissed the Second Appeal on merits in the absence of the appellants and their advocate. The High Court interpreted the phrase "hearing the appellant or his pleader" in Rule 11(1) of Order 41 of the Code of Civil Procedure (for short, CPC ) as to give adequate opportunity to the appellant or his counsel. As the counsel for the appellants did not appear even though they had adequate opportunity, the High Court held that it was open to it to deal with the Second Appeal on merits and therefore it dismissed the review petition.

7. It will be useful to refer to sub-rules (1) and (2) of Rule 11 of Order 41 of C.P.C. which read as under:

11. Power to dismiss appeal without sending notice to Lower Court-

(1) The Appellate Court, after sending for the records if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal, without sending notice to the Court from whose decree the appeal is preferred and without sending notice on the respondent or his pleader.

(2) If 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."

A plain reading of the provisions shows that Rule 11 deals with the procedure which the Appellate Court ought to follow before ordering notice to the respondents. Sub-rule (1) empowers the Court to dismiss the appeal if it thinks fit so to do after hearing the appellant or his pleader. To comprehend the correct import of the phrase "after fixing a day for hearing the appellant or his pleader and hearing him" it will be necessary to read sub-rule (2) also which says that if on the date fixed or any other day to which the hearing may be adjourned, the appellant (which means appellant or his pleader) does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The dismissal postulated this sub-rule is dismissal for non-prosecution or dismissal for default a