Single judge held High Court erred in deciding appeal on merits without appearing appellant. Citing Supreme Court, ruled Explanation to Order 41 Rule 17(1) CPC prohibits merits trial on default; appeal dismissed.
Decision of High Court quashed in terms of settled legal position on Order 41 Rule 17(1) CPC.
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| Single Bench: Hon'ble^ ^ | hri Justice Sanjay K. Agraw | al | |
| 06-02-2014 | |||
| v< | appe^ (1) The instant |
l under Section 100 of |
the |
| Code of Civil Procedu l |
ce, 1908 was preferred in |
the | |
| year 1999. It is an record is available. j |
admitted appeal. Lower Co |
urt | |
| (2) The appeal was caj |
tled out for hearing twice | in | |
| pre and post lunch se' | psions, but no representat |
ion | |
| was made on behalf cj |
f the appellant on both |
the | |
| ~^» | occaslons to prosecut^ | the appeal-. | |
| (3) Very recently, |
Ln Oianshyaffi Dass Qupt-a |
Vx | |
| MaJchan Lal1 reportftd question as to whethej |
±& (2012) 8 SCC 745, the High Court was justif |
the isd |
|
| in deciding the appea |
1 on merits in the absence | of | |
| any representatlon on |
behalf of the appellant |
was | |
| considered and the Su^ |
^rerae Court held as under: |
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| "4a shri Rakes! appearlng on subitiitted that] since there behalf of thd h Dahiya,. learned coun.sel Ibehalf of the appellanty the High Court was not justified in d^ciding the appeal on merits ^&s no representatlon on sppellant. The learned counsel pointeijd out that the only course open to the Cs the appeal on c but not to decj surt was either to dismiss le^ault or adjourn the same., ,de the matter on merits, in view of the E^planation to Order 41 Rule 17(1) CPC. |
|
| •-^ | 5. The learn^ behalf of the |
| whetljier 6. We are, in consider justified in in the absence behalf of the a this case^ called upon to the High Court was the appeal on merits of any representation on ppellant^ in view of the d^ciding |
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| Explanation to The said reference; provi^ |
ion Order 41 Rule 17(1) CE?C. is given below for easy |
|
| a.ss>ellaB.t/ | nl7. D^ the day ^ day to wh |
|
| S^plana | sub-rule empowerlng the appeal |
|
| 7. Rule 17(1) dismissal of a default. The |
^f Order 41 deals with the Ippeal for the appellant?s |
|
| even without read, would cl appellant does is called for dismiss the appj |
pxplanationy if literally ^arly indicate that if the |
|
| postulate a sl |
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| has to be de |
^ided on merits, because |
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| possibility of also thsre,. if case on msrlt$ appeared for the |
llowing of th the appellant ; eveii if appellant." |
e appeal is has a good nobody had |
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| <j | pz (4) In view of the ^ this Court cannot appeal on merits ex< appsllant's default dismissed. 4 |
oceed bQ^. (;ept ove settled to deci to dismi ^nd as such, |
legal positi de the inst ss it for the appeal |
|
| Sd SanjayK. Jud |
/- ~ ~ Agrawal ge |
|||
| u, |
3 issues framed by the court
Whether High Court was justified in deciding appeal on merits in absence of appellant's representation.
Whether Explanation to Order 41 Rule 17(1) CPC mandates dismissal of appeal if appellant fails to appear.
Whether appeal can be decided on merits despite appellant's default under Order 41 Rule 17(1) CPC.
2 provisions across 1 enactments
Smt. Kesra Teli
Arihara Teli
Appellant
Shri Justice Sanjay K. Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
