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High Court cannot dismiss an appeal on merits in the absence of the counsel, SC reiterates.


Indian Supreme Court Postpones Crypto Case to November, New Date Confirmed

       On Friday The Supreme Court held that High Courts do not have the power to dismiss an appeal on merits if the counsel for the appellant does not appear to argue the matter.
A bench comprising of Justices S. Abdul Nazeer and Sanjiv Khanna clarified that,
 “... 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.”
Factual Background
In the instant case, the plaintiffs filed a suit or declaration of   title, recovery of possession and mesne profits before the Trial Court. However, the Trial Court dismissed the suit.
Aggrieved by the order, the plaintiffs filed an appeal before the Additional District Judge. The District Judge set aside the Trial Court judgement,  allowed the suit and declared the plaintiffs as owners of the disputed land.
This judgment of the District Court was challenged by the defendants before the Guwahati High Court.  When the matter was taken up for hearing by the High Court, the  counsel for the appellants (original defendants) was not present to argue the matter. However, the High Court went on to decide the appeal on merits and later, dismissed the appeal. This act on the part of the High Court was challenged by the defendants in an appeal before the Supreme Court.
What the Supreme Court held
The sole contention that was argued by the appellants is that the High Court was not justified in dismissing the appeal on merits in the absence of the counsel.
The counsel for the appellant further relied on the explanation under Order 41 Rule 17(1) of the Code of Civil Procedure, 1908 (CPC) which states that the Court cannot dismiss an appeal on merits when the appellant remains absent on the date fixed for hearing.
In addition to taking serious note of the above, the Apex Court further relied on the judgements in Abdur Rahman and others  v. Athifa Begum and others  and  Ghanshyam Dass Gupta  v. Makhan Lal.
In the latter, the Supreme Court had held,
“Consequently,   the Explanation to sub¬rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 of Order 41 CPC should be   construed   as   empowering   the   appellate   court   to dismiss   the   appeal   on   merits   where   the   appellant remained absent or left unrepresented on the day fixed for hearing the appeal. The reason for introduction of such an Explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for non¬appearance. Such   an   opportunity   is   lost,  if   the   courts   decide   the appeal   on   merits   in   absence   of   the   counsel   for   the appellant.”
In view of the above, the Supreme Court set aside the High Court’s order stating that “This order has been made clearly in contravention of Rule 17(1) of Order XLI of the CPC”. The Apex Court further directed that the matter be remitted to the Guwhati High Court for a fresh disposal.

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