The power to dismiss an appeal on merits in case of default of the appellant is excluded by the Explanation under Rule 17 of Order 41 CPC.

1. - This is a civil restoration application preferred in D.B. Civil Special Appeal (Writ) No. 14/1990. The present appellant-petitioner Jagdish Prasad Singhal had preferred a letters patent appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, against the judgment and order dated 19.9.1989 passed by the learned Single Judge of this Court in S.B. Civil Writ Petition No. 587/1979. The special appeal came up for admission before the division bench consisting of Hon'ble Mr. Justice D.L. Mehta, as he then was, and Hon'ble Mr. Justice G.S. Singhvi on 19.11.1990. No one appeared on behalf of the appellant and the division bench decided the appeal on merits and dismissed it summarily. The appellant then the present petition for restoration of the appeal which had been decided on merits and dismissed on 19.11.1990. Thereafter, the division bench considered the question as to whether the application for restoration was at all maintainable when the special appeal had been heard and dismissed not in default but on merits. On this question, one of the Judges of the division bench namely Hon'ble Mr. Justice G.S. Singhvi opined and held as under:-

"The application for behalf of the appellant shows that the learned counsel was not available in Jaipur on 19.11.1990 and he reached Jaipur only on 19.11.1990 and on that count, he could not appear before the court. The appellant has suffered on account of default of appearance of the counsel. No notice had been issued by the Court till 19.11.1990. Therefore, it will be proper that an opportunity of hearing should be afforded to the appellant. The restoration application, therefore, deserves to be allowed and the special appeal deserves to be heard for admission".

2. Hon'ble Mr. Justice D.L. Mehta, as he then was, recorded his own order from pages 15 to 20 and recorded as under:-

"For the reasons mentioned above, I am in disagreement with the view taken by my brother Justice Singhvi. I am of the view that the matter needs determination by the larger bench".

3. The file was then placed before Hon'ble the Chief Justice and on 24.9.1992, Hon'ble the Chief Justice ordered that the matter may he listed before Hon'ble Mr. Justice M.B. Sharma, Hon'ble Mr. Justice I.S. Israni and Hon'ble Mr. Justice V.K. Singhal. Thereafter, it was again recorded by the Chief Justice on 12.2.1993 that since there is difference of opinion between the two learned Judges, it is referred to Justice M.R. Calla; may be listed in the month of March, 1993. This is how this matter comes up before me as there is difference of opinion between the two Hon'ble Judges of the division bench who have recorded their respective orders on 12.12.1991.

4. I have heard Shri P.N. Agrawal, learned counsel for the appellant-Petitioner at length. He has invited my attention to the various provisions of Order 41 CPC, particularly Order 41 Rules 17, 19 and 21 Civil Procedure Code. Order 41 Rules 17, 19 and 21 Civil Procedure Code are reproduced as under:-

"17. Dismissal of appeal for appellant's default. - (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.Explanation - Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.Hearing appeal ex parte - (2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."

19. Re-admission of appeal dismissed for default. - Where an appeal is dismissed under Rule 11, sub-rule (2) or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall readmit the appeal on such terms as to costs or otherwise as it thinks fit.21. Re