- (1.) The case is listed today for orders on an application but with the consent of the counsel for the parties the appeal itself was heard. This second appeal has been filed against the judgment and decree of the II Additional District Judge, Moradabad by which Civil Appeal No. 37 of 2000 filed by the appellant was dismissed by the lower appellate Court. It appears that at the time when the appeal was called out for hearing neither the appellant nor his counsel was present. However, the lower appellate Court considering the previous conduct of the appellant who was avoiding the hearing decided the appeal on merits and dismissed it. This second appeal was admitted on the following substantial question of law : "Whether in view of explanation to Order 41 Rule 17 Civil Procedure Code the Lower Appellate Court ought to have dismissed the appeal in default in the absence of appellant learned counsel and had no jurisdiction to decide the same on merit?
(2.) It appears that before the introduction of the explanation to Rule 17 of Order 41 Civil Procedure Code there was a divergence of views between the Allahabad High Court and the other High Courts on the point that in the absence of the counsel whether the appeal could be dismissed on merits or only in default. The use of the word 'may' occurring in sub Rule (1) of Rule 17 was the basis for the view taken by the Full Bench of the Allahabad High Court in Babu Ram v. Bhagwan Din, AIR 1966 Allahabad 1 that the provision does not take away the power of the Court to dismiss the appeal on merits if it does not choose to adopt the course of dismissing it in default.
(3.) The legislative intent in using the word 'may' in sub Rule 1 of Rule 17 of the Civil Procedure Code 1908 in place of the expression 'shall' which was used in the analogous provision Section 556 of the Civil Procedure Code of 1882 was according to the Full Bench obviously meant to provide some discretion to the court as otherwise the change of expression would have been redundant. The Full Bench gave a wide interpretation to the word 'may' in Rule 17 (1) so as not to exclude the discretion of the Court to dismiss an appeal on merits if such a power were available under other provisions and it took the view that Rules 30, 32 and 33 of Order 41 were such provisions which empowered the Court to dismiss an appeal on merits even in the absence of the appellant. The effect of the explanation is to make clear that despite the word 'may' occurring in it, Rule 17 does not give the court the discretion to dismiss the appeal on merits in a situation where the applicant is absent dealt with by the Rule. In Shaukat All v. VIth Additional District Judge, Bulandshahr, 2000 (2) All Rent Gas 250 : (2000 All LJ 2202) the Explanation has been considered and it has been held that the Court cannot decide the appeal on merits in the absence of the appellant or his counsel and that an order deciding the appeal on merits is without Jurisdiction. In AJit Kumar Singh v. Chiranjibi Lal, 2002 (1) All Rent Cas 531 : (AIR 2002 SC 1447) relied upon by Sri Bhargawa the Apex Court has held that the Appellate Court has no power to dismiss an appeal on merits under Rule 11 of Order 41. In holding so It took support from the explanation to Rule 17 of Order 41 and Rule 19 which provides for readmission of an appeal dismissed in default.;