- (1.) No one appears for the appellant. Mr. Bapna appears for the respondent Union of India.
(2.) This is a case of a petty low paid employee. Unfortunately since neither the appellant, nor the counsel for the appellant is present, this Court cannot go into merits of the case on account of O. 41, R. 17, C.P.C., which reads as under :- "17. Dismissal of appeal for appellant's default.- (1) 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. Explanation. - Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. Hearing appeal ex parte.- (2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte." If there was any doubt, the Explanation introduced by Amendment Act of 1976 by S.87 has made it clear that the Court cannot dismiss the appeal on merits. This certainly leads to the logical inference that hearing on merits is not possible, because once the appeal is heard and considered on merits, the Court may be convinced that there is no merit in the case and it deserves to be dismissed.
(3.) While hearing the Civil first and second Misc. appeals during last about one year, both at Jodhpur and Jaipur, I have observed that on the establishment of the Bench at Jaipur and consequent transfer of cases with transfer of the establishment of the Advocates from Jodhpur to Jaipur, several cases which are listed at Jodhpur and Jaipur remain unattended. Either the parties are not aware that the counsel who were earlier engaged have left the place without making arrangement of the other counsel at the place where the case has been transferred, or in spite of making arrangements there is lack of interest which explains non-appearance. In either case it is the litigant who, mostly is unaware of the listing of the case, and who suffers and after waiting for a chance of hearing for more than a decade in High Court the case is dismissed in default.;