2014(34) STR 906 (SC) Ghanshyam Dass Gupta vs. Makhan Lal

Facts:
The appellant engaged a lawyer for conducting his appeal before the High Court. Later on, the lawyer was elevated as judge of the High Court and consequently, he returned the brief. Though the appellant engaged another lawyer, due to oversight of the clerk, Vakalatnama of the new advocate was not placed on record and therefore the new lawyer was not intimated of the final hearing. On the day of final hearing, the old lawyer informed that he had been returned the brief and therefore there was no effective appearance made on behalf of the appellant. Even the respondent was absent. The learned judge however, decided the appeal on merits by a detailed judgment.

The appellant contended that the High Court was not justified in deciding the appeal on merits since there was no representation on behalf of the appellant. The appellant alleged that the only course open to the High Court was either to dismiss the appeal on default or adjourn the same, in view of Explanation to Order 41 Rule 17(1) of the Code of Civil Procedure (CPC).

The respondent’s counsel contested that since the appeal was of the year 2003 which came up for the final hearing after nine years, the High Court can decide the matter on merits even in the absence of the appellant.

Held:
After discussing the Explanation to Order 41 Rule 17 (1) of CPC in detail, the Hon’ble Supreme Court observed that the explanation was introduced to give an opportunity to the appellant to convince the Appellate Court that there was a sufficient cause for non-appearance. Such an opportunity would be lost, if the Court decides the appeal on merits. Following the decision in case of Abdul Rahman and Others vs. Athifa Begum and Others (1996) 6 SCC 62, the Hon’ble Supreme Court allowed the appeal, restored the appeal and directed the High Court to dispose off the appeal in accordance with Law.