HIGH COURT OF ALLAHABAD
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Gangeshwar Prasad, J. -
(1.)THE following question has been referred to this Full Bench for its opinion: "Whether, in the absence of an appellant or his counsel, an appellate Court should dismiss the appeal in default or decide the appeal on merits? Whether under such circumstances the appellate Court has jurisdiction to dispose of the appeal on merits?"
(2.)ON au application made under Section 13 of the Arbitration Act the Munsif of Orai passed a decree in terms of an award made by an arbitrator. The defendant preferred an appeal against the decree to the Civil Judge of Orai. When, the appeal came up for hearing neither the appellant nor his counsel appeared and the learned Civil Judge dismissed the appeal by passing an order in the following terms: "The appellant is absent. His counsel does not turn up to argue the appeal. The judgment appealed against is manifestly correct. Therefore, it is hereby ordered that the appeal fails and it is hereby dismissed with costs to the plaintiff-respondent."
Against the dismissal of his appeal the defendant filed an application in revision in this Court. On a reference made by the learned single Judge before whom the revision application came up for hearing the following question was laid before a Division Bench for its answer: 'Whether in the absence of an appellant or his counsel, an appellate Court should dismiss the appeal in default or decide the appeal on merits? The Division Bench has enlarged the scope of the question referred to it and has referred it for the opinion of a Full Bench.
It would be seen that the question referred to the Full Bench really consists of two questions: the first relates to the propriety or desirability of deciding an appeal on merits in the absence of an appellant and his counsel, and the second to the legality or the power of doing so. Naturally, it is to the second question that I should first address myself.
(3.)THE provision which, in express terms, provides for the dismissal of an appeal in the event of the appellant's failure to appear at the hearing of his appeal is Order XLI, Rule 17, C. P. C., and if runs as follows:--"Dismissal of appeal for appellant's default: 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 mate an order that the appeal be dismissed. Hearing appeal ex parte. 2. Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."
By notification, dated 22nd December 1951 this Court has deleted the words 'on the day fixed or on any other day to which the hearing may be adjourned' from Sub-rule (1), and the sub-rule as so amended reads thus: "1. Where the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.' The change made by this Court in Sub-rule (1) is, however, not material for the purpose of the question under reference and it does not in any manner affect the answer to it.
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