Order 41 Rule 17 CPC - Appeal Can't Be Dismissed On Merits If Appellant Fails To Appear; To Be Dismissed For Non-Prosecution : Supreme Court

The Supreme Court  stated that if the appellant does not appear when the appeal is called for a hearing, then the same can be dismissed for non-prosecution and not on merits. These findings were in the context of an explanation provided in Order XLI Rule 17 of the Civil Procedure Code, 1908. This order entitles the Court to dismiss an appeal if, on the day fixed for hearing, the appellant does not appear. Its explanation reads as follows:

“Explanation. - Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.”

The Bench of Justices BV Nagarathna and Justice Ujjal Bhuyan, interpreting the same, opined: “The Explanation categorically states that if the appellant does not appear when the appeal is called for hearing, it can only be dismissed for non-prosecution and not on merits.”

The instant case revolves around a property dispute between the present appellants and the respondents. Following the dispute, a suit was filed by the appellants, claiming a permanent injunction against the respondents. However, the Trial Court dismissed the same. Consequently, the appellants moved the Karnataka High Court in a second appeal.

However, on the date when the appeal was listed for hearing, the Junior of the arguing Senior Counsel apprised the Court that the cousin brother of the Senior Counsel had passed away. Thus, there was no representation on behalf of the appellants.

Notwithstanding, the High Court dismissed the appeal on merits while finding that there were no grounds to entertain the same. Aggrieved by the same, the appellants approached the Top Court.

On one hand, the appellant contended that the High Court could have dismissed the appeal for non-prosecution but not on merits. Further, it was also pleaded that the matter could be remanded for reconsideration by the High Court on merits.

Whereas on the other hand, the opposite party contended that there was no merit in the appeal, and the impugned order was passed since there was constant failure on the part of appellants to appear before the High Court.

After hearing both the parties, the Court made the aforesaid observations and held that the dismissal of the appeal on merits was contrary to the Order XLI Rule 17. In view of the same, the Court allowed the appeal and restored the same with the High Court.

Case Title: BENNY DSOUZA vs. MELWIN DSOUZA, Diary No.- 42876 - 2023

Citation : 2023 LiveLaw (SC) 1032

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