Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Benny Dsouza v. Melwin Dsouza, has stated 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.

What was the Background of Benny Dsouza v. Melwin Dsouza?

• In this case, there exists a property dispute between the appellants and the respondents.
  • Appellant filed a suit for permanent injunction which was later dismissed by the Trial Court.
  • Thereafter, an appeal was filed before the Karnataka High Court.
• On the date of the appeal, on account of bereavement in the family of the arguing counsel, there was no representation on behalf of the appellants before the High Court.
  • The High Court dismissed the appeal on merit.
• Thereafter, an appeal was filed before the Supreme Court wherein the counsel appearing for the appellants submitted that the High Court could have dismissed the appeal for non-prosecution in terms of the Rule 17 of Order 41 of Civil Procedure Code, 1908 (CPC) instead of dismissing the appeal on merits.
  • Allowing the appeal, the Supreme Court set aside the order of the High Court.

What were the Court’s Observations?

• The Bench of Justices BV Nagarathna and Ujjal Bhuyan observed that if the appellant does not appear when the appeal is called for a hearing, then the same can be dismissed for non-prosecution and not on merits.
  • These findings were in the context of an explanation provided in Rule 17 of Order 41 of CPC.

What is Rule 17 of Order 41 of CPC?

About:

• Order 41 of CPC deals with the appeals from original decrees.
• Rule 17 of Order 41 deals with the dismissal of appeal for appellant’s default. It states that -

(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.

Explanation. —Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.

• Explanation to sub ­rule (1) of Rule 17 was added in the year 1976 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.
  • 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.

Case Law:

• In the case of Abdur Rahman and Ors. v. Athifa Begum and Ors. (1996), the Supreme Court held that High Court cannot go into the merits of the case when there was non­appearance of the appellant.