Oriental Sales vs Bank of India

V.K. Jhanji, J.—This is defendants, second appeal directed against the judgment and decree of the Courts below whereby suit of the plaintiff bank (respondent herein) has been decreed.

Plaintiff-bank filed the suit for recovery of Rs. 2,04,788.40 Ps. Upon contest by the defendants, trial Court decreed the suit with costs and the defendants were held liable jointly and severally to pay the decretal amount. Plaintiff-bank was awarded interest at the rate of 18 per cent per annum with quarterly rests on Rs. 2,04,788/- from the date of the suit till realisation of decretal amount. Plaintiff-bank was further held entitled to realise decretal amount by way of sale of pledged goods and balance, if any, from other property of the defendants. Being aggrieved, defendants filed appeal before the first Appellate Court. On presentation of the appeal, the appeal was admitted and record of the case was called for. Learned District Judge fixed 28.10.1997 for final hearing of the appeal. On the date of hearing of the appeal, neither appellants nor their counsel appeared and the appeal on merits was dismissed. Hence this second appeal.

In this second appeal, learned counsel appearing on behalf of the appellants has contended that the order of the first Appellate Court dismissing the appeal on merits is erroneous inasmuch as under the provisions of Order XLI Rule 17(1) of the Code of Civil Procedure, on non appearance of the appellant or their counsel, the first Appellate Court, has no jurisdiction to dismiss the appeal on merits. At the best, it could have dismissed the appeal in default.

Learned counsel for the parties have been heard at length.

Order XLI Rule 17(1) of the C.P.C. reads as under:-

"17. Dismissal of appeal for appellant''s default-it) Where on the day fixed, or any other day to which the hearing may be adjourned, the appellant does not appear 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."

From the reading of the aforesaid rule, it is clear that where the appellant is absent and the appeal is called on for hearing, the first Appellate Court has no jurisdiction to dismiss the appeal on merits. It can either adjourn the appeal or dismiss it in default so that the appellant or his counsel gets an opportunity to show that his absence or that of his counsel was for sufficient cause. Explanation added to Sub-rule (1) of Rule 17 of Order XLI, C.P.C. by 1976 Amendment Act clearly provides that on non-appearance of the appellant(s) dismissal of appeal on merits is not permissible. Explanation came up for consideration before the Apex Court in Abdur Rahman and Others Vs. Athifa Begum and Others, . Their Lordships of the Hon''ble Supreme Court held as under:-

"xxx The respondents'' learned Counsel has been confronted with the proposition that though the High Court could have dismissed the appeal in default in the absence of the appellants counsel, it could not have adverted to the merits of the case. Here, the High Court has recorded that all relevant aspects of the matter have been taken into account in order to hold that there was no available ground for interference with the decision of the trial Court. This was an exercise against which the High Court should have been well advised not to indulge in at the stage of Order 41 Rule 17, C.P.C. The Explanation of Order 41 Rule 17(1) says that nothing in this Sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. The High Court having transgressed that limit, we have, therefore, no option but to allow the appeal, set aside the impugned judgment and order of the High Court and put the matter back to its file for fresh disposal in accordance with law."

In view of the above, order of the first Appellate Court is not sustainable in law. Resultantly, this appeal is allowed, judgment and decree of the first Appellate Court is set aside and the matter is remitted to the Court of District Judge, Amritsar for fresh decision in accordance with law. The District Judge, Amritsar may make an endeavour to dispose of the appeal within three months from the date of appearance of the parties. No costs.

Parties through their counsel are directed to appear before the District Judge, Amritsar on 29.4.1999.