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Courts not permitted to dismiss appeal on merit due to appellant’s default

In CIVIL APPEAL NO.  9407   OF  2019, SRI PRABODH CH. DAS vs MAHAMAYA DAS, the  question that came up for consideration before the Supreme Court was whether the High Court was justified in dismissing the second appeal on merits in the absence of the learned counsel for the appellants.

In this matter, the second appeal was filed against the judgment of the First Appellate Court. The Supreme Court observed that it is evident from the materials on record that the appeal was listed for hearing several times.  When the matter was taken up for hearing   on   21.01.2015,   learned   counsel   for   the appellants/defendants was not present to argue the matter and no request   was   made   on   his   behalf.   Therefore,   the   High   Court proceeded to decide the appeal on merits itself.  After consideration of the materials on record, the High Court dismissed the appeal on merits.

Referring to judgments in Abdur Rahman and others  v. Athifa Begum and Ghanshyam Dass Gupta  v. Makhan Lal, the Supreme Court agreeing with the Appellants held that Order 41 Rule 17(1) read with its explanation makes it explicit that the Court cannot dismiss the appeal on merits where the appellant remains absent on the date fixed for hearing.  In other words, if the appellant does not appear, the Court may if it deems fit dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits.

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