JUDGMENT :

Leave granted.

2. Heard Mr. Pijush K. Roy, learned counsel for the appellant and Mr. Gururaj, learned counsel for the respondents.

3. The present appeal by special leave is directed against the judgment and decree passed by the High Court of Kernataka in R.F.A. No.205 of 2008 (SP). Learned counsel for the appellant has raised a singular contention that when the counsel for the appellant was absent, the appeal could not have been decided on merits. In support of the said submission, he has commended us to the decision in Ghanshyam Dass Gupta v. Makhan Lal [(2012) 8 SCC 745. In the said decision, it has been held as follows :

"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.

8. Prior to 1976, co