[Order XLI Rule 17 CPC] Appeal Cannot Be Dismissed On Merits Merely Due To Non-Appearance Of Appellant: Karnataka High Court

The Karnataka High Court has reiterated that if the appellant does not appear when the appeal is called for hearing it can only be dismissed for non-prosecution and not on merits.

A single judge bench of Justice G Basavaraja allowed the appeal filed by Dhanayya (since deceased) and his legal heirs questioning the judgment and decree dated 04.03.2017 passed by the Senior Civil Judge and JMFC, Afzalpur, by which it dismissed the appeal filed by the defendants and confirmed the judgment and decree dated 02.04.2014 passed by the trial court.

The bench referring to the order of the Appellate court noted that the counsel for the appellants did not submit any arguments on behalf of the appellants. On this ground, the First Appellate Court considered that there were no arguments on behalf of the appellants and dismissed the appeal.

Then it said “It is well-settled law, in view of the provisions of Order XLI Rule 17 of Code Of Civil Procedure 1908, that when the counsel appearing for the appellant or the appellants are not present, and the counsel for the respondent is present, the only course open to the First Appellate Court is to dismiss the appeal for non-prosecution. The appellate Court should not consider the appeal on merits after hearing the counsel for the respondent/s, as contemplated under Order XLI Rule 17(1) of CPC.”

Referring to the Apex Court judgment in the case of Benny D'Souza and Others Vs. Melwin D'Souza and others reported in 2023 LiveLaw (SC) 1032, it said “In the present case, the First Appellate Court at paragraph 18 of the judgment noted that, despite providing ample opportunities, the counsel for the appellants did not present any arguments. Consequently, the court considered the arguments on behalf of the appellants as NIL. Furthermore, in paragraph 19, it was observed that the counsel for the respondent had presented arguments and subsequently dismissed the appeal.”

"This order has been made clearly in contravention of mandatory provisions under Rule 17(1) of Order XLI of the Code Of Civil Procedure 1908, which runs counter to the aforementioned decisions,” it added.

Allowing the appeal, it set aside the order of the Appellate Court and restored the case back and directed the First Appellate Court to dispose of the case in accordance with law as early as possible. Parties were directed to appear before the Court of Senior Civil Judge and JMFC.

Appearance: Advocate Chaitanyakumar C M for Appellants

Advocate Mahadev S Patil for Respondent

Citation No: 2024 LiveLaw (Kar) 115

Case Title: Dhanayya & Others AND Chandrashekhar

Case No: R.S.A 200252 OF 2017

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