Case Note & Summary
The appellants, who were plaintiffs in a partition suit, filed a second appeal before the Bombay High Court against the judgment of the District Judge, Nanded, dated 30-09-1985, which dismissed their appeal for non-prosecution. The original suit for partition was decreed by the trial court, but the defendants appealed. The lower appellate court dismissed the appeal for default when the appellant's counsel was absent, despite the respondent being present. The High Court examined the provisions of Order 41 Rule 17 CPC, which distinguishes between dismissal for default (Rule 17(1)) and hearing the appeal on merits when the respondent is present (Rule 17(2)). The court found that the lower appellate court had failed to comply with Rule 17(2) and had erroneously dismissed the appeal. The High Court set aside the impugned judgment and remanded the matter to the lower appellate court for fresh disposal on merits, directing the parties to appear on a specified date. The court emphasized that the appellate court has a duty to decide the appeal on merits if the respondent is present and ready to argue, even if the appellant is absent.
Headnote
A) Civil Procedure - Appeal - Dismissal for Default - Order 41 Rule 17 CPC - The appellate court cannot dismiss an appeal for default under Order 41 Rule 17(1) CPC when the appellant or counsel is absent; if the respondent is present and ready to argue, the court must proceed to decide the appeal on merits under Order 41 Rule 17(2) CPC. The court held that the lower appellate court erred in dismissing the appeal for non-prosecution and remanded the matter for fresh disposal on merits. (Paras 1-5)
Issue of Consideration
Whether the lower appellate court was justified in dismissing the appeal for non-prosecution under Order 41 Rule 17(1) of the Code of Civil Procedure, 1908, when the respondent was present and ready to argue.
Final Decision
The High Court allowed the second appeal, set aside the judgment and order dated 30-09-1985 passed by the District Judge, Nanded, and remanded the matter to the lower appellate court for fresh disposal on merits in accordance with law. The parties were directed to appear before the lower appellate court on 11-12-2006.
Law Points
- Order 41 Rule 17 CPC
- dismissal for default
- non-prosecution
- duty of appellate court
- merits decision
Case Details
2006 LawText (BOM) (11) 3
Second Appeal No. 61 of 1986
Shri M.V. Deshpande for appellants; Respondent 1 dismissed; Respondents 2 to 5 & 7 served; Smt. A.N. Ansari for respondent 8
Shekoji Bhimrao, Shamrao Bhimrao (minor), Ranoji Bhimrao Kadam (minor) under guardianship of mother Laxmibai Bhimrao Kadam
Motiram Maruti Maratha, Mohan Maruti, Tulsiram Maruti, Anandrao Maruti, Datta Budha, Gurusing Santuksing, Bhimrao Shamrao Kadam, Sanjay Bhagwanrao (minor) under guardianship of mother Nagrabai
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Nature of Litigation
Second appeal against dismissal of first appeal for non-prosecution in a partition suit.
Remedy Sought
Appellants sought setting aside of the lower appellate court's order dismissing their appeal for default and restoration of the appeal for hearing on merits.
Filing Reason
The lower appellate court dismissed the appeal for non-prosecution when the appellant's counsel was absent, despite the respondent being present and ready to argue.
Previous Decisions
The trial court decreed the partition suit in favor of the appellants. The defendants appealed to the District Judge, Nanded, who dismissed the appeal for non-prosecution on 30-09-1985.
Issues
Whether the lower appellate court was justified in dismissing the appeal for non-prosecution under Order 41 Rule 17(1) CPC when the respondent was present and ready to argue.
Submissions/Arguments
Appellants argued that the lower appellate court erred in dismissing the appeal for default and should have decided the appeal on merits under Order 41 Rule 17(2) CPC.
Ratio Decidendi
Under Order 41 Rule 17 CPC, if the appellant or counsel is absent, the appellate court may dismiss the appeal for default only if the respondent is also absent. If the respondent is present and ready to argue, the court must proceed to decide the appeal on merits under Rule 17(2).
Judgment Excerpts
The appellate Court cannot dismiss the appeal for default under Order 41 Rule 17(1) of the Code of Civil Procedure, if the respondent is present and ready to argue the appeal.
In the present case, the respondent was present and ready to argue the appeal. The learned District Judge ought to have decided the appeal on merits.
Procedural History
The appellants filed a partition suit in the trial court, which was decreed. The defendants appealed to the District Judge, Nanded. The District Judge dismissed the appeal for non-prosecution on 30-09-1985. The appellants then filed the present second appeal before the Bombay High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order 41 Rule 17
