7. A plain reading of the above paragraph from the judgment of the Court below would make it clear that no arguments were advanced on behalf of the plaintiff, by either the party in person or his learned counsel, who had earlier reported no instructions. Inspite of plaintiff’s non-appearance and default, when the appeal was called on for hearing, the Court below, without making an order of dismissal of the appeal for default, went on to decide the appeal on merits. The explanation to Rule 17 of Order XLI commands that nothing in that sub-rule shall be construed as empowering the Court to dismiss the appeal on merits. When there was a default on the part of the plaintiff/appellant, the Court below ought to have dismissed the first appeal for default instead of deciding the appeal on merits. Therefore, the judgment of the first appellate Court, which is impugned and which is made on merits inspite of default on the part of the appellant/plaintiff, is unsustainable in the facts and circumstances of the case and in view of the settled legal position. Having regard to the above reasons, this Court finds that there is substance in the substantial questions of law raised in this second appeal and that the second appeal deserves to be allowed, as the first appeal requires a fresh hearing before a decision is made on merits.
