Case Note & Summary
The High Court of Bombay at Goa considered a second appeal arising from a first appellate court's judgment in a civil dispute concerning property measuring almost 3000 sq. metres at Penha de Franca, Porvorim. The appellant had filed the second appeal challenging the first appellate court's decision on merits, even though the appellant and her advocate were absent on the date fixed for hearing. The only contesting respondents were respondent No.1 and the legal representatives of respondent No.2, who were represented by counsel. The second appeal was admitted on 21 September 2021 on a substantial question of law, namely whether the impugned judgment was sustainable in light of Order XLI Rule 17 of the Code of Civil Procedure, 1908. With the consent of parties, the appeal was taken up for final disposal because the issue was covered by the Supreme Court decision in Prabodh Choudhury Das v. Mahamaya Das, (2020) 18 SCC 701. The High Court noted that Order XLI Rule 17(1) CPC provides that where an appellant does not appear when the appeal is called for hearing, the court may dismiss the appeal, but the Explanation clarifies that nothing in the sub-rule empowers the court to dismiss the appeal on merits. The Supreme Court in Prabodh Choudhury Das explained that the Explanation was added by Act 104 of 1976 to resolve conflicting High Court views and to make it explicit that dismissal can only be for default, not on merits, because deciding on merits would deprive the appellant of the opportunity to show sufficient cause for non-appearance. The High Court observed that the first appellate court had decided the appeal on merits despite the appellant's absence, which was contrary to Order XLI Rule 17(1) CPC. The contesting respondents argued that the appellant was not diligent, as the matter was fixed several times without appearance, and therefore costs should be imposed. The High Court agreed that the record showed lack of diligence, but held that the legal provision and Supreme Court precedent mandated setting aside the first appellate court's judgment. Accordingly, the High Court allowed the second appeal, set aside the impugned judgment and decree, and remanded the matter to the first appellate court for disposal in accordance with law. The appellant was directed to pay costs of ₹50,000 to the contesting respondents, to be paid or deposited within two months from the date of the judgment. The court dispensed with service on respondents Nos.3 to 8 as they were not contesting. This decision reinforces the procedural safeguard that an appellate court cannot decide an appeal on merits in the absence of the appellant, even if the appellant has been negligent.
Headnote
A) Civil Procedure - First Appeal - Dismissal for Non-Appearance - Code of Civil Procedure, 1908, Order XLI Rule 17(1) and Explanation - Where appellant does not appear on hearing date, appellate court may dismiss appeal for default but cannot decide appeal on merits - First Appellate Court decided appellant's appeal on merits despite appellant and advocate absent, contrary to Order XLI Rule 17(1) and Explanation, and Supreme Court precedent in Prabodh Choudhury Das v. Mahamaya Das (2020) 18 SCC 701 - Held impugned judgment and decree set aside and matter remanded for fresh disposal in accordance with law, subject to payment of ₹50,000 costs by appellant (Paras 4-7).
Issue of Consideration
Whether the impugned judgment passed by the Appellate Court is sustainable when it is in the teeth of Order XLI Rule 17 of the Civil Procedure Code?
Final Decision
The second appeal was allowed. The impugned judgment and decree passed by the First Appellate Court were set aside, subject to the appellant paying/depositing costs of ₹50,000 within two months from the date of judgment. The matter was remanded to the First Appellate Court for disposal in accordance with law.
Law Points
- Order XLI Rule 17(1) CPC
- Explanation to Order XLI Rule 17(1) CPC
- Dismissal for default not on merits
- No power to dismiss appeal on merits when appellant absent
- 1976 Amendment clarified conflicting High Court views
- Opportunity to show sufficient cause must be preserved
- Remand appropriate with costs
Case Details
2023 LawText (BOM) (01) 267
Second Appeal No. 74 of 2022 with Civil Application No. 85 of 2022
Iftikhar Agha, Ketan Morajkar, Rui Alberto Gomes Pereira
Subhash Velingkar; Legal representatives of late Smt. Sushma Velingkar (Gauri Tukaram Borkar, Shailendra Subhash Velingkar, Geeta Vishal Signapurkar alias Geeta Subhash Velingkar, Rajendra Subhash Velingar); Sanjay Laxman Toraskar; Ompraksh Laxman Toraskar; Swapna Vishwas Naik; Vishwas Naik; Ramchandra Anand Sinai Rataboli; Sitabai Ramchandra Sinai Rataboli
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Nature of Litigation
Second appeal against a first appellate court's judgment in a civil dispute concerning property measuring almost 3000 sq. metres at Penha de Franca, Porvorim, where the first appellate court decided the appeal on merits despite the appellant's absence.
Remedy Sought
The appellant sought setting aside of the first appellate court's judgment and decree on the ground that it was passed in violation of Order XLI Rule 17(1) CPC, and remand of the appeal for fresh disposal.
Filing Reason
The first appellate court decided the appeal on merits when the appellant and her advocate did not appear on the hearing date; the appellant contended this was impermissible under Order XLI Rule 17(1) CPC and its Explanation.
Previous Decisions
The first appellate court had decided the appellant's appeal on merits despite the appellant's absence. A substantial question of law was framed in the second appeal on 21/09/2021, and the second appeal was admitted for final disposal based on the Supreme Court decision in Prabodh Choudhury Das v. Mahamaya Das.
Issues
Whether the impugned judgment passed by the Appellate Court is sustainable when it is in the teeth of Order XLI Rule 17 of the Civil Procedure Code?
Submissions/Arguments
Appellant contended that the first appellate court's decision on merits was contrary to Order XLI Rule 17(1) CPC and its Explanation, as the appellant and advocate were absent when the appeal was called for hearing, and the issue was covered by Prabodh Choudhury Das.
Contesting respondents submitted that the appellant was not diligent, the matter was fixed several times without appellant's appearance, and therefore the first appellate court was justified in hearing the respondent's advocate and deciding the case; they sought costs for the prejudice suffered.
Ratio Decidendi
Under Order XLI Rule 17(1) CPC read with its Explanation, where an appellant does not appear on the date fixed for hearing, the appellate court may dismiss the appeal for default but lacks jurisdiction to decide the appeal on merits. A judgment on merits in the absence of the appellant is contrary to the provision and liable to be set aside, with remand for fresh disposal and appropriate costs.
Judgment Excerpts
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. However, the explanation to this rule provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the Appeal on the merits.
Therefore, considering the above legal position, this Appeal will have to be allowed subject, no doubt, to payment of suitable costs by the Appellant.
The impugned Judgment and Decree made by the First Appellate Court will have to be set aside, subject to the Appellant paying costs to the contesting Respondents No.1 and the legal representatives of Respondent No.2. The matter will now have to be remanded to the First Appellate Court for disposal in accordance with the law.
Procedural History
The first appellate court decided the appeal on merits despite the appellant's absence on the hearing date. The appellant filed a second appeal before the High Court. On 21 September 2021, the High Court admitted the second appeal on a substantial question of law. On 6 January 2023, with the consent of the parties, the appeal was taken up for final disposal because the issue was covered by the Supreme Court decision in Prabodh Choudhury Das. The High Court allowed the appeal, set aside the first appellate court's judgment and decree, and remanded the matter to the first appellate court for fresh disposal in accordance with law, subject to payment of costs.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XLI Rule 17(1), Explanation to Order XLI Rule 17(1)
