An appellate court has no power to dismiss an appeal on merits in the absence of the appellant.

Untwalia, J.

1. This miscellaneous judicial case was filed by the petitioners under Order 41 Rule 19 of the Code of Civil Procedure, hereinafter called the Code, for restoration of Second Appeal 28 of 1967, and revision of the judgment and order dated the 25th January, 1969 passed therein by Mahapatra, J. The said learned Judge was not a member of this court when the miscellaneous judicial case came up for hearing before G. N. Prasad, J., on 5-1-71. The appellants or their counsel had not appeared when the second appeal was taken up for hearing on 25-1-69, the respondents counsel had appeared. Instead of dismissing the appeal for default Mahapatra, J., cursorily examined its merits and finding no merit in it dismissed it as such. Before G. N. Prasad, J., Mr. S. C. Ghose, learned counsel for the petitioners relied upon a Bench decision of this court in Mosafir Mahton V/s. Mt. Bachani, AIR 1963 Pat 1. But the correctness of that decision was doubted in view of the decision of the Supreme Court in Sukhpal Singh V/s. Kalyan Singh, AIR 1963 SC 146 followed by a Full Bench of the Allahabad High Court in Babu Ram V/s. Bhagwan Din, AIR 1966 All 1 (FB) and hence the case has come up before us on reference by the learned Single Judge.

2. The petitioners case is that the property in dispute measured 15.35 acres of agricultural lands although the area mentioned in the judgment of this Court dated 25-1-69 is more. The suit was dismissed by the learned Subordinate Judge of Palamau on 1-8-61, but on appeal by the plaintiffs his decision was reversed by the learned District Judge of Palamau by his judgment dated 12-10-66. The petitioners preferred the second appeal from the judgment and decree of the District Judge. Second Appeal 28 of 1967 came up for the first time for hearing on a Saturday which was a working day. The appeal had been filed through Mr. Kumar Sidheshwar Pra-sad Singh but later on the petitioners did not take work from him for certain reasons and engaged Mr. M. K. Varma, another Advocate. He was entrusted with the brief and put in charge of the case. On the 24th January, 1969 when Mr. M. K. Varme Was in the High Court, he received a message at 12 Oclock that his brother was seriously ill at his village home near Dalmianagar, which village is about 80 miles from Patna. He at once drove in a car to his village home with his clerk Shri Kamta Prasad. There, due to exhaustion, he was himself laid down with cold and fever. He came back to Patna on the following Monday and found that Second Appeal 28 of 1967 was listed on the daily list for hearing before the Hon ble Mr. Justice Mahapatra and it was disposed of ex parte in absence of the Advocate for the appellants.

3. A counter-affidavit has been filed on behalf of the opposite parties 1 to 5 who were plaintiff respondents in the second appeal. They do not accept the version given by the petitioners in their application which is affidavited by Shri Kamta Prasad, clerk of Mr. M. K. Varma. An affidavit in reply has also been filed. After hearing learned counsel for the parties, I have come to the conclusion that Mr. Kumar Sidheshwar Prasad Singh was present in the High Court but not in the court of Mr. Justice Mahapatra. Since the petitioners were not taking work from him, he had left all interest in the matter and did not attend to it when the appeal was called on for hearing. I am also satisfied that Mr. M. K. Varma was compelled to proceed to his village home suddenly with his clerk without making any arrangement for his cases. The second appeal came up on the daily list on the 25th January, 1969. If the application under Order 41, Rule 19 of the Code is maintainable then, in my opinion, sufficient cause has been made out for restoring the appeal to its file by treating the order of Mr. Justice Mahapatra as in effect and substance, an order dismissing the appeal for default. But the question is whether the judgment and order passed by a learned single Judge of this court o