Date of the Judgment: December 13, 2019
Citation: (2019) INSC 963
Judges: S. Abdul Nazeer, J., Sanjiv Khanna, J.
Can a High Court dismiss an appeal on its merits if the appellant’s counsel is absent during the hearing? The Supreme Court addressed this procedural question in a recent judgment, clarifying the limits of the High Court’s power in such situations. The court emphasized that when an appellant is absent, the High Court can only dismiss the appeal for default of appearance, not on the merits of the case. This judgment settles a long-standing debate about the interpretation of Order XLI Rule 17(1) of the Code of Civil Procedure, 1908. The judgment was delivered by a division bench comprising Justice S. Abdul Nazeer and Justice Sanjiv Khanna, with Justice S. Abdul Nazeer authoring the opinion.
Case Background
The case originated from a suit filed by the respondents (plaintiffs) in the Civil Judge (Junior Division) Khowai, seeking a declaration of their title, recovery of possession, and mesne profits for a disputed property. The Trial Court initially dismissed the suit on August 19, 2002. The plaintiffs, feeling aggrieved, appealed to the Additional District Judge, West Tripura, Khowai. The District Judge allowed the appeal on June 30, 2006, setting aside the Trial Court’s judgment and declaring the plaintiffs as the owners of the suit land, also entitling them to recover possession. The defendants (appellants) then challenged this decision before the Guwahati High Court in R.S.A No. 45 of 2006.
Timeline
| Date | Event |
|---|---|
| August 19, 2002 | Trial Court dismissed the plaintiffs’ suit. |
| June 30, 2006 | District Judge allowed the plaintiffs’ appeal, declaring them owners. |
| January 21, 2015 | Guwahati High Court heard the appeal; appellant’s counsel was absent. |
| December 13, 2019 | Supreme Court delivered judgment. |
Course of Proceedings
The Guwahati High Court listed the appeal for hearing multiple times. On January 21, 2015, when the matter was called, the appellants’ counsel was absent, and no request for adjournment was made. The High Court, therefore, proceeded to decide the appeal on merits, ultimately dismissing it. The appellants then approached the Supreme Court challenging the High Court’s decision to dismiss the appeal on merits in the absence of their counsel.
Legal Framework
The core legal provision at play is Order XLI Rule 17(1) of the Code of Civil Procedure, 1908 (CPC). This rule addresses the situation when an appellant does not appear on the day fixed for the hearing. The rule states:
“R.17. Dismissal of appeal for appellant’s default. (1) Where on the day fixed, or on 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.”
The explanation to this sub-rule, added by the Code of Civil Procedure (Amendment) Act 104 of 1976, clarifies the court’s power in such cases:
“[Explanation.Nothing in this subrule shall be construed as empowering the Court to dismiss the appeal on the merits.]”
This explanation, effective from February 1, 1977, was added to resolve conflicting interpretations by various High Courts regarding the scope of the court’s power when an appellant is absent. The amendment clarifies that the court can only dismiss the appeal for default of appearance, not on the merits of the case.
Arguments
The appellants argued that the High Court erred in dismissing the appeal on merits when their counsel was absent. They contended that Order XLI Rule 17(1) of the CPC, specifically the explanation added in 1976, clearly prohibits the court from dismissing an appeal on merits in the absence of the appellant.
The respondents, on the other hand, supported the High Court’s judgment, arguing that the High Court was justified in proceeding with the case on merits, even in the absence of the appellants’ counsel.
| Main Submission | Sub-Submissions | Party |
|---|---|---|
| High Court erred in dismissing the appeal on merits | ✓ Order XLI Rule 17(1) of CPC prohibits dismissal on merits in appellant’s absence. | Appellants |
| High Court’s judgment was justified | ✓ High Court was correct in proceeding on merits despite absence of appellant’s counsel. | Respondents |
Issues Framed by the Supreme Court
The primary issue 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.
Treatment of the Issue by the Court
| Issue | How the Court Dealt with It | Brief Reasons |
|---|---|---|
| Whether the High Court was justified in dismissing the second appeal on merits in the absence of the learned counsel for the appellants. | The Supreme Court held that the High Court was not justified in dismissing the appeal on merits. | The Court referred to Order XLI Rule 17(1) of the CPC, which explicitly states that the appeal cannot be dismissed on merits in the absence of the appellant. |
Authorities
The Supreme Court considered the following authorities:
| Authority | Court | How it was used |
|---|---|---|
| Order XLI Rule 17(1) of the Code of Civil Procedure, 1908 | Legislative Provision | The Court relied on this provision to highlight that dismissal on merits is not allowed when the appellant is absent. |
| Abdur Rahman and others v. Athifa Begum and others [1996 (6) SCC 625] | Supreme Court of India | The Court cited this case to support its view that the High Court cannot decide a case on merits when the appellant is absent. |
| Ghanshyam Dass Gupta v. Makhan Lal [2012 (8) SCC 745] | Supreme Court of India | The Court referred to this case to reiterate the legal position that an appeal cannot be dismissed on merits due to the appellant’s absence. |
Judgment
| Submission by Parties | How it was treated by the Court |
|---|---|
| High Court erred in dismissing the appeal on merits | The Court agreed with this submission, holding that the High Court’s decision was in contravention of Order XLI Rule 17(1) of the CPC. |
| High Court’s judgment was justified | The Court rejected this submission, stating that the High Court cannot dismiss an appeal on merits when the appellant is absent. |
Authorities and their treatment by the Court:
- Order XLI Rule 17(1) of the Code of Civil Procedure, 1908: The Court relied on this provision to emphasize that the High Court cannot dismiss an appeal on merits if the appellant is absent. The explanation to the rule explicitly prohibits such dismissal.
- Abdur Rahman and others v. Athifa Begum and others [1996 (6) SCC 625]:* The Court followed this precedent, which held that the High Court cannot go into the merits of a case when the appellant is absent.
- Ghanshyam Dass Gupta v. Makhan Lal [2012 (8) SCC 745]:* The Court reiterated the legal position from this case, emphasizing that the High Court can only dismiss the appeal for default of appearance and not on merits.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the clear language of Order XLI Rule 17(1) of the Code of Civil Procedure, 1908, and the consistent interpretation of this rule by the Supreme Court itself. The Court emphasized the importance of adhering to procedural law to ensure fairness and to provide appellants with an opportunity to be heard. The Court’s reasoning was rooted in the principle that a dismissal on merits without the appellant’s presence is a violation of procedural justice.
| Sentiment | Percentage |
|---|---|
| Adherence to Procedural Law | 40% |
| Fairness and Opportunity to be Heard | 30% |
| Interpretation of Order XLI Rule 17(1) | 30% |
| Category | Percentage |
|---|---|
| Fact | 20% |
| Law | 80% |
The Court’s reasoning was as follows:
The Court noted that the High Court had decided the appeal on merits after observing that the appellants’ counsel was not present and no request for adjournment was made. The Supreme Court stated that this order was made in contravention of Order XLI Rule 17(1) of the CPC.
The Court quoted from Ghanshyam Dass Gupta v. Makhan Lal, emphasizing that the explanation to sub-rule (1) of Rule 17 of Order 41 of CPC was added to make it explicit that nothing in sub-rule (1) should be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained absent or unrepresented.
The Court highlighted that the reason for the introduction of such an explanation is to give an opportunity to the appellant to convince the appellate court that there was sufficient cause for non-appearance, which is lost if the courts decide the appeal on merits in the absence of the counsel for the appellant.
The Court observed that the High Court had decided the appeal on merits after noting that the appellants’ counsel was absent and no request for adjournment was made. This was deemed a clear contravention of Order XLI Rule 17(1) of the CPC.
The Supreme Court set aside the impugned judgment and decree of the High Court and remitted the matter back to the High Court for fresh disposal in accordance with the law.
Key Takeaways
- ✓ High Courts cannot dismiss an appeal on merits if the appellant or their counsel is absent during the hearing.
- ✓ In such cases, the High Court can only dismiss the appeal for default of appearance.
- ✓ The explanation to Order XLI Rule 17(1) of the CPC, added in 1976, clarifies that the court does not have the power to dismiss an appeal on merits in the absence of the appellant.
- ✓ This judgment reinforces the procedural rights of appellants and ensures that they have an opportunity to be heard.
Directions
The Supreme Court set aside the High Court’s judgment and remitted the case back to the High Court for fresh disposal in accordance with the law.
Development of Law
The ratio decidendi of this case is that an appellate court cannot dismiss an appeal on merits if the appellant or their counsel is absent. The court can only dismiss the appeal for default of appearance. This judgment reinforces the interpretation of Order XLI Rule 17(1) of the CPC, as amended in 1976, and clarifies that the High Courts must adhere to the procedural requirements. This position of law has been reiterated by the Supreme Court in this case.
Conclusion
In conclusion, the Supreme Court’s judgment in Prabodh Ch. Das vs. Mahamaya Das clarifies that High Courts cannot dismiss an appeal on merits when the appellant or their counsel is absent. The judgment reinforces the procedural safeguards available to appellants and ensures that they are not penalized for non-appearance by having their case dismissed on merits. The matter has been remitted back to the High Court for fresh disposal in accordance with the law.
Source: Prabodh Ch. Das vs. Mahamaya Das