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TMI Blog2013 (1) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, 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 - 5950 of 2012 - - - Dated:- 21-8-2012 - K.S. Radhakrishnan and Dipak Misra, JJ. REPRESENTED BY : S/Shri Rakesh Dahiya, Gagan Deep Sharma, Preeti Singh and Vikram Gulia, Advocates, for the Appellant. [Order]. Leave granted. 2. The question that arises for consideration in this case is whether the High Court was justified in deciding the appeal on merits when there was no appearance on behalf of the appellant, in view of the explanation to Order 41 Rule 17(1) of the Code of Civil Procedure (CPC). 3. The appellant herein had engaged a lawyer for conducting his appeal before the Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaving the parties to bear their own costs. 5. Aggrieved by the judgment of the High Court, this appeal has been preferred. 6. Shri Rakesh Dahiya, learned counsel appearing on behalf of the appellant, submitted that the High Court was not justified in deciding the appeal on merits since there was no representation on behalf of the appellant. Learned counsel pointed out that the only course open to the Court was either to dismiss the appeal on default or adjourn the same, but not to decide the matter on merits, in view of the explanation to Order 41 Rule 17(1) CPC. 7. Learned counsel appearing on behalf of the respondent supported the judgment of the High Court contending that the appeal was of the year 2003 and came up for final hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort and meaning of sub-rule (1) of Rule 17 of Order 41 CPC. Some High Courts had taken the view that it was open to the appellate court to consider the appeal on merits, even though there was no appearance on behalf of the appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for appellant s default. Conflicting views raised by the various High Courts gave rise to more litigation. The Legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was added by Act, 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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