Gurdial Singh vs Mohan Singh

M.L. Singhal, J.—Heard. Decree passed by the learned District Judge, Hoshiarpur on merit cannot be sustained as before him the learned counsel for the appellant had made statement that the appellant had taken the brief from him and he had no instructions to plead and if that was so, he could dismiss the appeal in default but more appropriately he should have given notice to the appellant calling upon him to engage some other counsel for arguing this appeal on his behalf.

In Abdur Rahman and Others Vs. Athifa Begum and Others, , the Hon''ble Supreme Court observed that "there was no appearance of the appellant before the High Court. High Court could not go into the merits of the case. High Court having decided the appeal on merits has transgressed the limit." Explanation to Order 41 Rule 17(1) CPC says that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. Orders 41 Rule 17(1) CPC lays down as under:

"Dismissal of appeal for appellant is default -

Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appeal when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

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

Learned District Judge thus could not decide the appeal on merits. All that he could do so was that he could dismiss the appeal in default. More appropriately, he should have sent notice to Gurdial Singh appellant calling upon him to engage some other counsel for arguing the appeal as the previous counsel engaged by him had pleaded no instructions. So the decree passed by the learned District Judge is set aside (sic)before him.

Copy of the order be given dasti.