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Allahbad High Court
BISHAMBHARDAYAL,S.C.MANCHANDA,GANGESHWARPRASAD
Babu Ram - Appellant
Versus
Bhagwan Din - Respondent
Decided On : 02/18/1965
APPEAL - Dismissal for default of appearance - Power of appellate Court to decide appeal on merits in absence of appellant and his counsel - O. XLI, R. 17(1), C.P.C. - Permissive character - Discretion of Court - O. XLI, R. 30, C.P.C. - Hearing of parties or their pleaders - Opportunity to be heard - Absence of appellant - Whether requirement of hearing satisfied - Supreme Court decision in Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146 - Applicability - Exceptional circumstances - Dismissal of appeal on merits in absence of appellant and his counsel - Propriety and desirability.
Fact of the Case:
The appellant preferred an appeal against the decree passed by the Munsif of Orai in terms of an award made by an arbitrator. The Civil Judge of Orai dismissed the appeal by passing an order in default. The defendant filed an application in revision in the High Court. On a reference made by the learned single Judge before whom the revision application came up for hearing, the following question was laid before a Division Bench for its answer: 'Whether in the absence of an appellant or his counsel, an appellate Court should dismiss the appeal in default or decide the appeal on merits?' The Division Bench enlarged the scope of the question referred to it and referred it for the opinion of a Full Bench.
Finding of the Court:
1. Order XLI, R. 17(1), C.P.C. is permissive in character and confers a discretion on the Court to either dismiss the appeal for default of appearance or to decide the appeal on merits. 2. The requirement of hearing the parties or their pleaders under O. XLI, R. 30, C.P.C. is satisfied if the opportunity to be heard has been given, even if the appellant and his counsel are absent. 3. The Supreme Court decision in Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146, is applicable to cases where the appellant is absent at the hearing of the appeal. 4. The appellate Court should ordinarily dismiss the appeal for default in the absence of the appellant and his counsel, and it is only in exceptional circumstances that it should decide the appeal on merits.
Issues: 1. Whether the appellate Court has the power to decide an appeal on merits in the absence of the appellant and his counsel? 2. Whether the requirement of hearing the parties or their pleaders under O. XLI, R. 30, C.P.C. is satisfied if the opportunity to be heard has been given, even if the appellant and his counsel are absent? 3. Whether the Supreme Court decision in Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146, is applicable to cases where the appellant is absent at the hearing of the appeal? 4. In what circumstances should the appellate Court dismiss the appeal for default in the absence of the appellant and his counsel?
Ratio Decidendi: 1. The language of O. XLI, R. 17(1), C.P.C. is permissive and not obligatory, indicating that the legislature intended to confer a discretion on the Court to either dismiss the appeal for default of appearance or to decide the appeal on merits. 2. The requirement of hearing the parties or their pleaders under O. XLI, R. 30, C.P.C. is not confined to cases where the appellant and his counsel are actually heard, but also includes cases where the opportunity to be heard has been given. 3. The Supreme Court decision in Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146, is applicable to cases where the appellant is absent at the hearing of the appeal, and it holds that the requirement of hearing the parties or their pleaders is satisfied if the opportunity to be heard has been given. 4. The appellate Court should ordinarily dismiss the appeal for default in the absence of the appellant and his counsel, and it is only in exceptional circumstances, such as when the Court is convinced that the appellant is deliberately avoiding the hearing of the appeal, that it should decide the appeal on merits.
Final Decision: The appellate Court has the jurisdiction, even in the absence of the appellant and his counsel, to dispose of the appeal on merits. However, the Court should ordinarily dismiss the appeal for default and it is only in exceptional circumstances that it should decide the appeal on merits.
GANGESHWAR PRASAD, J. : The following question has been referred to this Pull Bench for its opinion :
"Whether, in the absence of an appellant or his counsel, an appellate Court should dismiss the appeal in default or decide the appeal tin merits ? Whether under such circumstances the appellate Court has jurisdiction to dispose of the appeal on merits ?"
2. On an application made under S. 13 of the Arbitration Act the Munsif of Orai passed a decree in terms of an award made by an arbitrator. The defendant preferred an appeal against the decree to the Civil Judge of Orai. When the appeal came up for hearing neither the appellant nor his counsel appeared and the learned Civil Judge dismissed the appeal by passing an order in the following terms :
''The appellant is absent. His counsel does not turn up to argue the appeal. The judgement appealed against is manifestly correct. Therefore, it is hereby ordered that the appeal fails and it is hereby dismissed with costs to the plaintiff-respondent."
Against the dismissal of his appeal the defendant filed an application in revision in this Court. On a reference made by the learned single Judge before whom the revision application came up for hearing the following question was laid before a Division Bench for its answer : 'Whether in the absence of an appellant or his counsel, an appellate Court should dismiss the appeal in default or decide the appeal on merits ?" The Division Bench has enlarged the scope of the question referred to it and has referred it for the opinion of a Full Bench.
3. It would be seen that the question referred to the Full Bench really consists of two questions : the first relates to the propriety or desirability of deciding an appeal on merits in the absence of an appellant and his counsel, and the second to the legality or the power of doing so. Naturally, it is to the second question that I should first address myself.
4. The provision which, in express terms, provides for the dismissal of an appeal in the event of the appellant's failure to appear at the hearing of his appeal is O. XLI, R. 17, C.P.C., and it runs as follows : -
"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. Hearing appeal ex parte
(2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."
5. By notification, dated 22nd December 1951 this Court has deleted the words 'on the day fixed or on any other day to which the hearing may be adjourned' from sub-r. (1), and the sub-rule as so amended reads thus :
"(1) Where the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.'
The change made by this Court in sub-r. (1) is, however, not material for the purpose of the question under reference and it does not in any manner affect the answer to it.
6. It does not admit of any doubt that the dismissal provided for by O. XLI, R. 17 (1) is not a dismissal on merits, but a dismissal only for default of appearance. On the language of the sub-rule the order that the appeal be dismissed has to be causally connected with the situation mentioned therein, and the order of dismissal which the appellate Court is empowered to pass thereunder cannot have its basis in anything else except the failure of the appellant to appear when the appeal is called on for hearing. The sub-rule does not require the Court to give any hearing to the respondent even if he is present or to refer to any part of the proceedings as O. XLI, R. 30, C.P.C. does. Further, the only order which it authorises the Court to pass is that the appeal be dismissed and in no circumstance is it possible for the Court, while acting under it, to dispose of the appeal in any other manner. If a consideration of the merits of an appe
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