Case Note & Summary
The appellant, Pandhari Mude, filed a Second Appeal under Section 100 of the Code of Civil Procedure, 1908, challenging the judgment and decree dated 30th September 2006 passed by the learned District Judge-1, Wardha, in Regular Civil Appeal No. 131/2005. The lower appellate court had dismissed the appeal for non-prosecution under Order 41 Rule 17 CPC. The appellant had filed a suit for partition before the Civil Judge, Junior Division, Samudrapur, which was decreed. The respondents (original defendants) appealed against that decree. The appellant, as respondent in the appeal, was absent on the date of hearing, and the appellate court dismissed the appeal for non-prosecution. The appellant contended that the appellate court erred in dismissing the appeal without deciding it on merits. The High Court examined Order 41 Rule 17 CPC and noted that the provision requires the appellate court to hear the appellant and decide the appeal on merits if the appellant appears and the respondent does not. If the appellant does not appear, the court may dismiss the appeal for default, but if the appellant appears, the court must decide on merits. In this case, the appellant was absent, but the appellate court dismissed the appeal without hearing the respondent or considering the merits. The High Court held that the dismissal was not in accordance with law and set aside the order, remanding the matter to the lower appellate court for fresh decision on merits. The court directed the appellate court to decide the appeal afresh after giving opportunity of hearing to both parties.
Headnote
A) Civil Procedure - Dismissal of Appeal for Default - Order 41 Rule 17 CPC - The lower appellate court dismissed the appeal for non-prosecution when the appellant was absent. The High Court held that under Order 41 Rule 17 CPC, if the appellant appears and the respondent does not, the court shall hear the appellant and decide the appeal on merits. Dismissal for default without hearing on merits is not permissible. The appellate court must proceed to decide the appeal on merits even if the appellant is absent, after hearing the respondent if present. (Paras 7-10) B) Civil Procedure - Remand - Order 41 Rule 28 CPC - The High Court set aside the dismissal order and remanded the matter to the lower appellate court for fresh decision on merits, directing the appellate court to decide the appeal in accordance with law, after giving opportunity of hearing to both parties. (Para 11)
Issue of Consideration
Whether the lower appellate court was justified in dismissing the appeal for non-prosecution under Order 41 Rule 17 of the Code of Civil Procedure, 1908, without deciding the appeal on merits, and whether such dismissal is sustainable in law.
Final Decision
The High Court allowed the Second Appeal, set aside the judgment and decree dated 30th September 2006 passed by the learned District Judge-1, Wardha, in Regular Civil Appeal No. 131/2005, and remanded the matter to the lower appellate court for fresh decision on merits in accordance with law, after giving opportunity of hearing to both parties.
Law Points
- Order 41 Rule 17 CPC
- Order 41 Rule 28 CPC
- Section 100 CPC
- Partition Suit
- Dismissal for default
- Non-prosecution
- Appellate court's duty to decide on merits
