Judgment

RAGHUBAR DAYAL, J.: (For himself and J. L. Kapur J.) This appeal, by special leave, against the decree of the Madhya Bharat High Court dated January 5, 1955, raises the question whether the Appellate Court is bound to decide an appeal on merits on the basis of the material on record when the appellant appears at the hearing but does not address the Court.

2. The appellant s first appeal against the respondents came up for hearing before the High Court on January 4, 1955. Mr. Mungre, who was the counsel for the appellants stated that he had no instructions to represent the appellant. The appellant did not deny this fact. His application for adjournment was rejected. The appellant was not prepared to address the Court. The High Court therefore dismissed the appeal, relying on the decision in Mathura Das v. Narain Das, ILR 1940 All 220, for default, with costs.

3. The contention raised for the appellant is that the High Court had no jurisdiction to decide the appeal fixed for final hearing without considering the proceedings of the Trial Court and the memorandum of appeal before it and that the right of the appellant to have the case decided on merits on the material before the