- (1.) D. K. Seth, J. The defendant-respondent in Misc. Civil Appeal No. 61 of 1999 had assailed the order dated 26-7-1999 passed in the said appeal by means of this writ petition.
(2.) BY an order dated 26-7-1999 the appeal was admitted fixing 28-9-1999 for argument. While admitting the appeal an order of status quo was issued till the next date. Shri Sudama Ji Shandilya, learned Counsel for the petitioner contends that the order of admission and order of status quo was passed without hearing the defen dant-petitioner without giving any oppor tunity of hearing. Therefore, the said order cannot be sustained. He also con tends that while admitting the appeal, the learned appellate Court did not consider the evidence and the materials on record. Therefore, the said order is liable to be set aside. These are the two grounds on which the said order was challenged. I have heard learned Counsel for the petitioner at length. Order XLI, Rule 11 of the Code of Civil Procedure is as follows: "11. Power to dismiss appeal without send ing notice to Lower Court.- (1) The appellate Court after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accord ingly if he appears on that day, may dismiss the appeal without sending notice to the Court from decree the appeal is preferred and without serv ing notice on the respondent or his pleader. (2) If on the day fixed or any other day to which the hearing may be adjourned the appel lant does not appear when the appeal is called on the hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. (4) Where an appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. "
(3.) A plain reading of the above provision makes it clear that the Appeal Court, after sending for the record or without or before sending for the record, may fix a date for hearing the appellant or its Counsel, and on such date, may dismiss the appeal without sending notice to the Court, the decree of which is appealed against and without serving notice on the respondents or his pleader. The expres sion "after sending for the record if it thinks fit so to do" implies that sending for the records before fixing the date for hear ing under Order XLI, Rule 11 (1) of the Code is discretionary. If it thinks fit it may do so or it may not do so. It is open to the Appeal Court to dismiss the appeal on the date fixed after hearing the appellant or his pleader. Such dismissal order can be passed without sending notice to the Court whose decree is appealed against. The ap peal can be dismissed under sub-rule (1) even without serving notice upon the respondent. Under sub-rule (2) thereof on the date fixed or on any adjourned date if the appellant fails to appear, the appeal Court is free to dismiss the appeal in default. Such dismissal is to be notified to the Court, the decree whereof was ap pealed against in view of sub-rule (3) thereof. But one thing is imperative viz. fixing a day for hearing the appellant or his pleader. The appeal Court may dismiss either after hearing the appellant or his pleader under sub-rule (1) or may dismiss in default under sub- rule (2) thereof. The expression "may" occurring in sub-rule (2) makes it clear that the Appeal Court in its discretion may dismiss or it may not. If it does not exercise the discretion to dismiss in default then it may either adjourn the date and fix another or it may admit the appeal even in the absence of the appel lant. In Bindhu Bhushan Sarkar v. Kulakamini Bose, 52 CWN 517, the Cal cutta High Court took the view that "may" in sub-rule (2) indicates that the Court has discretion to pass any order other than dismissal. The dismissal under sub-rule (1) is a summary dismissal, whereas under sub-rule (2) it is in default for non-prosecution. But in no case the dismissal under sub-rule (2) can be on merits. Inasmuch as if an appeal at the stage of final hearing cannot be dismissed on merits in the absence of the appellant or its pleader in view of Order XLI, Rule 17 (1) the language whereof is identical with those of Order XLI, Rule 11 (2), then it cannot be con ceived that it can be so dismissed on merit under Order XLI, Rule 11 (2 ).;