A.N. Varma, J. - (1.) AGAINST the judgment and decree dated 13.8.2002, passed in Regular Suit No. 261 of 1987, whereby the suit filed by the respondents for ejectment was decreed, the appellant filed an appeal before the District Judge being Civil Appeal No. 79 of 2002. From the perusal of the record it appears that several dates were fixed for the arguments in the appeal but the same could not be heard. Finally it was heard on 3.1.2006 and 15.5.2006 was the date fixed for delivery of judgment. Before the judgment could be delivered, the Presiding Officer was transferred. The appeal thereafter was taken up on 17.8.2006, on which date the appeal was dismissed on merits in the absence of the appellant. An application purported to be under Order 41, Rule 19, C.P.C. was preferred for recall of the said judgment which was dismissed by the Additional District Judge (Court No. 1) Unnao, vide its judgment and order dated 20.1.2007, against which the instant appeal has been filed. I have heard Shri S.K. Mehrotra, learned Counsel for the appellant as well as Shri Mohd. Arif Khan, learned Senior Advocate, assisted by Shri Mohd. Saeed, Counsel for the respondents.
(2.) SHRI Mehrotra submitted that in view of the fact that on the date fixed the appellant admittedly was not present, therefore, the Court below could not have proceeded to decide the appeal on merits. According to him, in the absence of the appellant the learned Court below ought to have dismissed the appeal in default as is provided under Order 41, Rule 17 of the Code of Civil Procedure. In support of his case he placed reliance upon a decision rendered by the Apex Court in Abdul Rahman and others v. Athifa Begum and others : 1996 (6) SCC 62 and Desa Singh v. Ajit Singh and others : 2007 (49) AIC 942 (SC) : 2007 (66) ALR 316 (SC).
(3.) SHRI Khan, in opposition argued that the appeal was pending since 2002 and despite several dates having been fixed for hearing, the appellant in order to delay the disposal of the appeal deliberately, with no just cause, avoided hearing. The Court, thus, left with no other alternative, proceeded. According to him, since merits of the case have been considered, therefore, no prejudice has been caused to the appellant and, therefore, no error has been committed by the Court below and as such the judgment and order passed by the Appellate Court does not suffer from any illegality or infirmity. Order 41, Rule 17 reads as follows: - - Dismissal of appeal for appellant's default. - -(1) Where on the day fixed, or on any other date 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.;