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, conflicting views were expressed by different High Courts in the country as to the purport and meaning of sub-rule (1) of Rule 17 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 Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 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.

9. 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, where in 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."

4. In view of the aforesaid, the judgment and decree passed by the High Court is set aside and the matter is remitted to the High Court for final disposal. Be it noted, the appellant in pursuance of the order dated 12.01.2015, has paid an amount of Rs. 10,000/- to the respondent.

The appeals are allowed to the extent indicated hereinabove. There shall be no order as to costs.