- (1.) THIS second appeal is directed against the judgment and decree dated 22-1-2007 passed by the District Judge Udham Singh Nagar in Civil Appeal No. 62 of 2004 Purushottam and another Vs. Tarsem Singh, arising out of the judgment and decree dated 25-9-2004 passed by the Civil Judge (Junior Divi sion) Rudrapur, Udham Singh Nagar in Civil Suit No. 63 of 1999, Tarsem Singh Vs. Purushottam and another. By the judgment and decree dated 25-9-2004, the trial court had decreed the suit of the plaintiff- respondent, while the first ap pellant court dismissed the appeal by the judgment and decree dated 22-01-2007.
(2.) THE Second Appeal is admitted on the following substantial question of law: Whether the First Appeal can be de cided on merit in the absence of the ap pellants ? Relevant facts, in brief, are that the respondent-plaintiff filed a suit for permanent injunction against the de fendant-appellants, which was registered as Civil Suit No. 63 of 1999, Tarsem Singh Vs. Purushottam and another before the Civil Judge (Junior Division) Rudrapur (Udham Singh Nagar ). The suit was heard and decided by the trial court on merits and by the judgment and decree dated 25-9- 2004, the suit was de creed against the defendants and the de fendants were restrained from interfering with the Khasra No. 464/2, area 0. 007 hectare and 464/2 area 0. 005 hectare belonging to the plaintiff. Aggrieved by the judgment and decree of the trial court, the appellants filed first appeal before the District Judge Udham Singh Nagar. Notices were issued in the appeal. The respondent was served and he was represented before the appellate court, but the appellants were not present on the date of hearing of appeal. The Dis trict Judge instead of dismissing the appeal in default of the appellants un der Order 41, Rule 17 (1) Explanation of the C. P. C. , proceeded to enter into the merits of the case and dismissed the appeal on merit by the judgment and decree dated 22-01 -2007. Learned counsel for both the par ties have agreed that the appeal be de cided today itself without summoning the lower court record.
(3.) IT is not disputed that the Civil Appeal No. 62 of 2004, Purushottam and another Vs. Tarsem Singh was heard by the appellate court in the ab sence of the appellants. IT reveals from a perusal of the impugned judgment and decree dated 22-01-2007 that no one was present on behalf of the appellants to argue the appeal, meaning thereby that the appeal was heard in the ab sence of the appellants. It is pertinent to mention that in the instant case since the appellants were absent and they were not repre sented before the appellate court on the date of hearing, therefore, the provisions of Order 41, Rule 17 (1) of the Code of Civil Procedure were applicable. The only proper course open to the appellate court was to dismiss the appeal for default of the appellants. Relevant extract of Order 41, Rule I7 (l)of the C. RC, reads as under- "17. Dismissal of appeal for appel lant's default- (l) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appear 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. " 8. I am fortified in my view by the Apex Court verdict in the case of Abdur Rahman and others Vs. Athifa Begum and others [ (1996) 6 Supreme Court Cases, Page 62] wherein while dealing with the provisions of Order 41, Rule 17 (1) Explanation of the C. PC. , it has been observed in that case that "here, the High Court has recorded that all relevant aspects of the matter have been taken into account in order to hold that there was no available ground for inter ference with the decision of the trial court. This was an exercise against which the High Court should have been well advised not to indulge in at the stage of Order 41 Rule 17 CPC. The Ex planation to Order 41 Rule 17 (1) CPC says that nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. The High Court having transgressed that limit, we have therefore no option but to allow the appeal, set aside the im pugned and order of the High Court and put the matter back to its file for fresh disposal in accordance with law. " 8. In view of the discussion above, I hold that the first appellate court was not justified in deciding the appeal on merits in the absence of the appellants. The question is answered accordingly. 9. For the reasons aforesaid, the judgment and decree passed by the first appellate court under challenge are li able to be set aside and the matter is remanded to the District Judge Udham Singh Nagar for deciding the appeal afresh in accordance with law. The ap peal deserves to be allowed accordingly. 10. The second Appeal is hereby al lowed with no order as to costs. The judgment and decree dated 22- 01-2007 passed in Civil Appeal No. 62 of 2004, Purushottam Vs. Tarsem Singh are set aside and matter is remanded to the Dis trict Judge Udham Singh Nagar for de cision afresh in accordance with law, who shall decide the first appeal on merit expeditiously as far as possible. Till the decision of the Civil Appeal No. 62 of 2004, both the parties shall maintain status quo as on today. 11. All applications stand disposed of. .;