- (1.) The application CAN 11031 of 2017 for re-hearing of the appeal is treated as on the day's list.
(2.) The order dated 7th June, 2017 ought to be recalled. The ground for setting it aside is plain and simple. If the appellants were not before the court, the court could only have dismissed it for default under Order 41 Rule 11 (2) of the Code of Civil Procedure. The explanation to Order 41 Rule 17 stipulates that dismissal of an appeal for default shall not be construed as empowering the court to dismiss the appeal on the merits. In this case, in the order dated 7th June, 2017, the court has entered into the merits of the case in the absence of the appellants and dismissed it.
(3.) It is contrary to the judgment of the Supreme Court (Secretary, Deptt. Of Horticulture, Chandigarh & Anr. Vs. Raghu Raj, 2009 AIR(SC) 514). We insert paragraphs 44 and 45 of that judgment as follows:- "44. It is true that in the instant case, the appeal before the High Court was not an Appeal from Original Decree (First Appeal), but an Appeal from Appellate Decree (Second Appeal). But Rule 1 of Order XLII which deals with Appeals from Appellate Decrees (Second Appeals) lays down procedure and expressly states that the Rules of Order XLI shall apply so far as may be to Appeals from Appellate Decrees. Prima facie, therefore, it appears that once an appeal is admitted and is placed for hearing i.e. hearing on merits, it can be dismissed for default but cannot be decided on merits in absence of appellant (or his advocate)." "45. In view of the fact, however, that in our opinion, on the facts in their entirety, the High Court ought not to have proceeded to decide the appeal, we hold that the impugned order of the High Court is liable to be set aside. In view of this conclusion, we clarify that we may not be understood to have expressed final opinion one way or the other as regards interpretation of Rule 17 of Order XLI read with Rule 1 of Order XLII.";