The Supreme Court has observed that a High Court cannot dismiss a second appeal on merits where the appellant is unrepresented on the date fixed for hearing.
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, the bench observed.
In Prabodh Ch. Das vs. Mahamaya Das, as the counsel for the appellants was not present to argue the matter and no request was made on his behalf, the High Court proceeded to decide the appeal on merits itself and dismissed it.
Before the Apex Court, in appeal, the provisions of Order XLI Rule 17(1) of the Code of Civil Procedure, was pressed into service to challenge dismissal of the appeal on merits in the absence of counsel for the appellants. Order XLI Rule 17(1) deals with dismissal of appeal for appellant's default. Referring to the said provisions, the bench of Justice S. Abdul Nazeer and Justice Sanjiv Khanna said:
Explanation to subrule (1) of Rule 17 was added by Act 104 of 1976. Prior to 1976 conflicting views were expressed by different High Courts in the country as to the purport and meaning of subrule (1) of Rule 17 of Order 41 of CPC. Therefore, the explanation was introduced w.e.f 01.02.1977, to clarify the law by making an express provision that where the appellant does not appear, the Court has no power to dismiss the appeal on merits. Thus, 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.
The bench also referred to the judgments in Ghanshyam Dass Gupta v. Makhan Lal and Abdur Rahman v. Athifa Begum, wherein it was held that High Court cannot go into the merits of the case when there was non-appearance of the appellant.
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