Back
B. V. NAGARATHNA, UJJAL BHUYAN
Benny D’Souza – Appellant
Versus
Melwin D’Souza – Respondent
ORDER :
1. Leave granted.
2. The appellants herein are the plaintiffs who were the appellant in RSA No. 196/2022. The only grievance of the appellants herein is with regard to the dismissal of the said appeal vide order dated 26.09.2023 on merits although the appellants were not represented inasmuch as there was no counsel who appeared for the appellants and the junior counsel for the appellants submitted that the senior counsel engaged in the matter, was not available as his cousin had passed away. Therefore, on account of a bereavement in the family of the arguing counsel there was no representation on behalf of the appellants before the High Court.
3. Learned senior counsel appearing for the appellants submitted that the High Court could have dismissed the appeal for non-prosecution in terms of the order XLI Rule 17 CPC and particularly the Explanation thereto instead of dismissing the appeal on merits by stating that no substantial question of law was made out. Therefore, the learned senior counsel submitted that the impugned judgment may be set aside and the matter may be remanded to the High Court for consideration on the merits of the appeal.
4. Per contra, learned counsel appea
An appeal cannot be dismissed on merits if the appellant is not represented; dismissal must be for non-prosecution as per CPC Order XLI Rule 17.
An appellate court must comply with procedural rules and cannot dismiss appeals on merits if the appellants are absent; such appeals should only be dismissed for non-prosecution.
The appellate court must dismiss appeals for non-appearance rather than on merits, ensuring compliance with procedural rules under Order XLI Rule 17 of CPC.
Dismissals of appeals must occur for non-prosecution when appellants are absent, not on merits, ensuring adherence to procedural requirements.
An appeal cannot be dismissed on merits when the appellant remains absent, as per Order 41 Rule 17(1) of C.P.C.
The Court's decision was primarily based on the interpretation and application of Order 41 Rule 17(1) of the Code of Civil Procedure, 1908, and the explanations provided by relevant case laws, emphas....
An appeal cannot be dismissed on merits in the absence of the appellant or their counsel, as per Order XLI Rule 16 and Rule 17.
No appeal lies against an order dismissing a suit for default as per procedural rules under the Code of Civil Procedure.
Court allows restoration of appeal for non-prosecution due to sufficient justification related to inability to appear.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
