9911796707
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Issues:
1. Competency of the court to inquire into the merits of the case in the absence of the appellant and his pleader. 2. Interpretation of Order 41, Rule 17 regarding dismissal of appeal. 3. Whether the change in wording from "shall" to "may" in Order 41, Rule 17 allows the court to decide on the merits of the case. 4. Remedies available to an appellant if the appeal is decided against him on its merits. 5. Authority and legal implications of allowing an appeal to be rejected on its merits without hearing the appellant. Detailed Analysis: 1. The appellant, as the 5th defendant in a case decreed in favor of the plaintiff, preferred an appeal but was absent during the hearing. The pleader holding vakalat for the appellant only requested an adjournment and did not argue the appeal. The Subordinate Judge, instead of dismissing the appeal for default, considered the evidence and dismissed the appeal with costs. The issue raised was whether the court had the authority to delve into the case's merits in the absence of the appellant and his pleader. 2. The contention was made that the court should have dealt with the appeal under Order 41, Rule 17, which would allow the appellant a right of application for re-admission under Rule 19, rather than considering the case on its merits without proper representation. 3. The debate centered on the interpretation of the change in language from "shall be dismissed" to "may make an order that the appeal be dismissed" in Order 41, Rule 17. The argument was whether this alteration permitted the court to decide on the case's merits, a practice deemed undesirable under previous enactments. 4. Concerns were raised regarding the remedies available to an appellant if the appeal was decided against him on its merits without a proper hearing. The possibility of seeking a review application was discussed, but uncertainties existed regarding its validity and the absence of a clear appeal process against its rejection. 5. The judgment highlighted the rarity of appellate courts delving into the merits of an appeal liable for dismissal due to default. The lack of substantial authority on this issue was noted, emphasizing the unusual nature of the situation and the potential legal consequences of allowing appeals to be rejected on their merits without the appellant's presence or proper representation. The judgment concluded that the Subordinate Judge had no authority to consider the case on its merits in the absence of the appellant and his pleader. The court set aside the previous order and directed the Subordinate Judge to restore the appeal to file and dispose of it according to law, emphasizing the importance of proper legal procedures and representation in appellate proceedings.
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