BISWANATH DIXIT AND OTHERS vs KOTHABANDHU PUJAPANDA AND ANOTHER

Dr.A.K.RATH, J.

Plaintiffs are the appellants against a confirming judgment.

The dispute lies in a narrow compass. It is not necessary to recount in detail the case of the parties. Suffice it to say that plaintiffs as appellants

instituted the suit for declaration of title, confirmation of possession, permanent injunction and certain other consequential reliefs. The defendants

entered contest and filed written statement denying the assertions made in the plaint. The suit was dismissed. Felt aggrieved, the plaintiffs appealed

before the learned District Judge, Puri, which was subsequently transferred to the court of the learned Additional Sub-Judge, Puri and renumbered as

T.A.No.33/56 of 1990/88. None appeared for the appellants. After hearing the learned counsel for the respondents, learned appellate court dismissed

the appeal. Hence, this appeal.

This appeal was admitted on the following substantial question of law:

“Whether the lower appellate court was justified in not dismissing the appeal in absence of the appellant and dispose of the matter without

considering the evidence on record ?â€​

Heard Dr.Sujata Dash, learned Advocate for the appellants. None appeared for the respondents.

Dr.Dash, learned Advocate for the appellants submitted that counsel for the appellants filed an application on 9.4.1992 for adjournment. The same

was rejected. No argument was advanced by the learned counsel for the appellants. Learned appellate court committed a manifest illegality in

dismissing the appeal on merit.

The subject matter of dispute is no more res integra. An identical question came up before the apex Court in the case of Ghanshyam Dass Gupta v.

Makhan Lal, (2012) 8 SCC 74. The question arose before the apex Court as to whether the High Court was justified in deciding the appeal on merit in

the absence of any representation on behalf of the appellant, in view of Explanation to Order 41 Rule 17 (1) CPC. The apex Court held thus:Â Â

“7. Rule 17(1) of Order 41 deals with the dismissal of appeal for the appellant's default. The abovementioned provision, even without Explanation,

if literally read, would clearly indicate that if the appellant does not appear when the appeal is called for hearing, the court has to dismiss the appeal.

The provision does not postulate a situation where, the appeal has to be decided on merits, because possibility of allowing of the appeal is also there, if

the appellant has a good case on merits; even if nobody had appeared for the appellant.

Prior to 1976, conflicting views were expressed by different High Courts in the country as to the purport 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 Order 41 CPC should be construed as empowering

the appellate court to dismiss the appeal on merits where the appellant remained absent or left unrepresented on the day fixed for hearing the appeal.

The reason for introduction of such an Explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that

there was sufficient cause for non-appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the

appellant.â€​

In view of the authoritative pronouncement of the apex Court in the case of Ghanshyam Dass Gupta (supra), the inescapable conclusion is that the

learned lower appellate court fell into patent error of law in deciding the appeal on merit in the absence of the counsel for the appellants. The

impugned judgment is, therefore, set aside. Instead of directing the learned appellate court to decide the application for non-appearance of the counsel

for the appellants after a quarter century, interest of justice shall be best served, if the learned lower appellate court decides the appeal on merit.

Accordingly, this Court directs the learned lower appellate court to decide the appeal, as expeditiously as possible, preferably within a period of six

months. The appeal is allowed to the extent indicated above. The parties shall bear their costs throughout.