RANAWAT, J. - (1.) THIS is a second appeal from the judgment of the District Judge, Jhunjhunu, of the 17th May, 1950.
(2.) GIRDHARILAL filed a suit on the 1st of April, 1947 in the court of the Civil Judge at Nim-ka-Thana for Rs. 1690/2/-, which was decreed on the 28th of September, 1949. An appeal was filed against that judgment in the court of the District Judge, Jhunjhunu, on the 6th October, 1949. After several adjournments on the 17th of May, 1950 the learned District Judge dismissed the appeal on merits, even though the appellant or his counsel were not present. The main point which has been urged in this appeal is that the learned District Judge should not have decided the case on merits but he should have at the most dismissed it for default. Mr. Agrawal, who appeared on behalf of the other side urged that the counsel of the appellant had been served and he appeared before the court to file an adjournment application which was rejected by the court, and even though the counsel withdrew from the case the court had jurisdiction to decide the case on merits in view of the decision in Mathura Das vs. Narain Das and others (1) (A. I. R. 1940 All. 248. ). The decision in Mathuradas's case is clearly distinguishable. In that case the appellant was present in court and it could not therefore be held that there was any default of appearance. In the present and the counsel of the appellant who appeared to move an adjournment application withdrew from the case, no sooner his application had been rejected. There was, therefore, no appearance on behalf of the appellant. Order 41, Rule 17 C. P. C. lays down that 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 make an order that the appeal be dismissed. Formerly in place of "may" in Rule 17 there was the word "shall" which made it mandatory for the court to dismiss the appeal for default of appearance. The word "shall" has now been replaced by the word "may" and it is argued that on account of this change in the language of Rule 17 it should be held that the appellate court had power to decide the appeal on merits in spite of default of appearance of the appellant. If an appeal is decided on merits it has to be dealt with under Order 41, Rule 30 C. P. C. which lays down that the appellate court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open court, either at once or on some further day of which shall be given to the parties or their pleaders. It may be noted that an appellant has a right of being heard. An appellate court is, therefore, bound to allow an opportunity to the appellant to address it. If no such opportunity is allowed the decision on merits cannot be regarded as in accordance with law. Reading the language of Rule 30 with that of Rule 17, it becomes evident that the discretion, which has been allowed to a court by the use of the word "may" in Rule 17 only extends to the matter of granting an adjournment or to dismissing the appeal for default of appearance. It is not open to an appellate court under these circumstances, to decide the appeal on merits, without hearing an appellant or without allowing him an opportunity of so being heard. Reference may be made to Nasirkhan vs. Itwari and others (2) (A. I. R. 1924 All. 144.), Tahar Sheikha Chowkidar and others vs. Otaruddin Hawaldar and others (3) (A. I. R. 1929 Cal. 475.), Musaliarakath Muhamad vs. Manaviakrama the Zamorin Rajah Avergal and others (4) (A. I. R. 1923 Mad. 13.), Basudeo vs. Bideshi and others (5) (A. I. R. 1929 Rangoon 11.) and Dinesh Chandra vs. Janaki Nath (6) (A. I. R. 1952 Tripura 9. ). The notice which were issued to the appellant by the lower appellate court, it is admitted, had not been served on him. His counsel however were informed but they noted that the appellant be informed by the court. They also produced a letter of one Kapildeo from Nim-ka-Thana saying that as the time was too short he could not contact the appellant. It is, therefore, clear that the counsel who filed an adjournment application did so because they could not contact the appellant and thus failed to receive instructions from him. Thus there was good reason for the non-appearance of the appellant or for his advocate to withdraw from the case. The order of the lower appellate court deciding the case on merits is therefore illegal and should be set aside. As there was good explanation on the day fixed for hearing in the lower appellate court the case should be remanded to the lower court for decision on merits after hearing both the parties. Mr. Agrawal has prayed that in order to avoid further delay m the disposal of this case a date might be fixed by this court for the attendance of both the parties before the lower appellate court. Mr. Bhandari has agreed to this. With the consent to the both the sides 25th of May, 1953 is fixed for the attendance of both the parties before the lower appellate court at Jhunjhunu. This appeal is allowed, the judgment and decree of the lower appellate court are set aside and the case is remanded to the court of the District Judge at Jhunjhunu with a direction to rehear the appeal and to dispose it of according to law. Costs of this appeal shall abide the result in the lower appellate court. .;