2013 (1) TMI 195 - SC - Indian Laws

Scope of explanation to Rule 17(1) of Order 41 CPC - Whether the High Court was justified in deciding the appeal on merits when there was no appearance on behalf of the appellant - Held that - Following the decision in case of ABDUR RAHMAN & ORS Versus ATHIFA BEGUM & ORS (1996 (8) TMI 471 - SUPREME COURT) wherein the scope of explanation to Rule 17(1) of Order 41 CPC came up for consideration. While interpreting the said provision, this Court took the view that the High Court could not go into the merits of the case if there was no appearance on behalf of the appellant. Therefore, set aside the judgment of the High Court and direct the High Court to dispose of the same in accordance with law. In favour of assessee

Summary

Issues:
- Justification of High Court in deciding the appeal on merits in absence of representation on behalf of the appellant.

Analysis:
The case involved a situation where the appellant had engaged a lawyer for his appeal before the Delhi High Court, but due to the lawyer's elevation as a Judge, the files were returned to the appellant. The appellant then engaged another lawyer, but due to a mistake by the clerk, the Vakalatnama of the new advocate was not filed, resulting in the absence of the lawyer's name in the cause list. Despite no effective representation on behalf of the appellant during the final hearing, the learned Judge proceeded to consider the appeal on merits and dismissed it on the grounds of breach of contract and failure to prove forfeiture of earnest money. The appellant challenged this decision, arguing that the High Court was not justified in deciding the appeal on merits in the absence of representation.

The key legal provision under consideration was Rule 17(1) of Order 41 of the Code of Civil Procedure, which deals with the dismissal of an appeal for the appellant's default. The provision, even without the explanation, mandates that if the appellant does not appear when the appeal is called for hearing, the court may dismiss the appeal. However, the explanation added in 1976 clarifies that this rule should not be construed as empowering the court to dismiss the appeal on merits in case of the appellant's absence. This legislative clarification aimed to prevent conflicting views among different High Courts and ensure that the appellant has an opportunity to present a sufficient cause for non-appearance.

Referring to a previous judgment, the Supreme Court emphasized that if there is no representation on behalf of the appellant, the High Court cannot delve into the merits of the case. The Court endorsed the view that deciding an appeal on merits in the absence of the appellant's counsel deprives the appellant of the opportunity to present justifications for non-appearance. Consequently, the Supreme Court allowed the appeal, set aside the High Court's judgment, and directed the High Court to dispose of the matter in accordance with the law. Notably, no costs were awarded in this decision.