The main legal point established in the judgment is that the appeal should not be dismissed on merits in the absence of the appellant, and proper procedural rules, such as Rule 89-A of General Rules (Civil), must be followed for intimation to the parties.

JUDGMENT :

1. Heard learned counsel for the appellant and learned counsel for the respondent.

2. Instant second appeal has been preferred on behalf of the plaintiff-appellant challenging the judgment and decree dated 24.01.2019 passed by The IIIrd Additional District and Sessions Judge, Pilibhit in Civil Appeal No. 1 of 2016 (Mohd. Miyan Vs. Nawab Hussain) dismissing the appeal of the plaintiff-appellant preferred against the judgment and decree dated 02.12.2015 passed by the Civil Judge (Junior Division), Pilibhit in Original Suit No. 131 of 1995.

3. Plaintiff-appellant has filed suit for permanent injunction against the defendant-respondent, which was concurrently discarded by the courts below. Instant second appeal has been preferred on behalf of the plaintiff-appellant on the limited point qua opportunity of hearing with a plea that first appeal filed on his behalf has been dismissed ex parte in his absence without affording him opportunity of hearing in violation of the provisions as enunciated under Order 41 Rule 17(1) of C.P.C.

4. Vide order dated 29.04.2019 record of courts below is summoned and instant second appeal has been ordered to be admitted on the following substantial question of law :

"(i) whether when in the order sheet there was a recital that the appellant was not present then could the first appellate court have found that the parties were heard and thereafter could have decided the appeal on merits;

(ii) whether in the absence of the appellant, the appeal should have been dismissed in default under Order 41 Rule 17 (1) C.P.C.

5. Before entering into the merits of the instant second appeal as submitted by the counsel for the appellant, the relevant provisions relating to the decision on appeal in absence of appellant is required to be examined. In this respect Order 41 Rule 17 C.P.C. and Order 41 Rule 19 C.P.C., which are relevant, are quoted herein below:-

"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 this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits.

(2) Hearing appeal ex parte. — 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 [***, 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 re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

6. Explanation to rule 17(1) of Order 41 C.P.C., which was added by virtue of Act 104 of 1976, clearly denotes that in absence of the appellant, appeal should not be dismissed on merits. Conjoint reading of rule 17 and its explanation makes it explicit that in absence of the appellant, appellate court utmost dismiss the appeal in default, however, it does not have the jurisdiction to dismiss it on merits. Rule 2 of Order 41 C.P.C. further clarifies that in case the appellant is present but the respondent is absent in that condition appeal can be heard ex parte and decided. The intention of the legislation is very much clear that the appeal should not be dismissed on merits in absence of the appellant. Provision as enunciated under Order 41 rule 19 C.P.C. provides remedial measure to cope up the consequential effect of provisions as enunciated under rule 17 of Order 41 C.P.C. The appellant whose appeal got dismissed for want of prosecution can be resorted to under the provisions of Order 41 rule 19 C.P.C. for readmission of the appeal. Therefore, legislation is intended to decide the appeal on merits on