D.P. Desai, J.
1. Though these two proceedings relate to different orders made by different Courts against which the aggrieved party had come in second appeal in one case and in civil revision application in the other, the order passed by me on the second appeal and the civil revision application on the date fixed for the admission of the respective matters, has led to the present two proceedings. In the second appeal 1 passed the order on 1-7-1971 in following terms:
Mr. Vin absent. Having gone through the judgments of the Courts below and the memorandum of appeal, I see no reason to admit this appeal. Dismissed.
In the civil revision application, I passed an order in the following terms on the same day:
Mr Mankad absent. Having gone through the judgments of the courts below I find no substance in this revision application. Rejected.
As a result of the aforesaid orders, Mr. Vin moved the Court by Misc. Civil Application No. 409 of 1971 that he was prevented from appearing before this Court on the aforesaid day on account of sufficient reasons and therefore, the second appeal which has been dismissed be readmitted and fixed for admission. In the civil revision application, Mr. Mankad instead of filing a regular miscellaneous civil application, filed a note addressed to the Registrar stating that he could not remain present for sufficient cause and therefore, the matter may be placed before me in order to enable him to obtain an order for restoration of the civil revision application. This note was filed by Mr. Mankad on 2-7-1971 and on this note, I passed the following order on 9-7-1971.
Fix for hearing. Also notify for the members of the Bar who propose to intervene and show whether such an order based on merits can be set aside by this Court or not.
Mr. Vin's application was filed thereafter on 16-7-1971 and in that application I passed the following order on 24-11-1971:
Rule. Notice to the members of the Bar as ordered on the office (note) in C.R A. No. 602/71. To be heard with C.R.A. No. 602/71.
2. That is how both these matters have come up for final hearing before me now. No member of the Bar has intervened to argue the matter one way or the other.
3. The revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure (hereafter referred to as 'the Code') is discretionary. Therefore, it may be contended having regard to this nature of the jurisdiction of this Court that a party moving this Court has no right to be heard in support of revisional application at the admission stage. I advisedly refrain from considering this aspect and I prefer to decide the office note filed by Mr. Mankad on the basis that Mr. Mankad, as representing the petitioner had a right to be heard at the preliminary hearing, i.e. at the stage of admission just as an appellant in case of an appeal has been conferred a similar right to be heard under Rule 11, Order 41 of the Code. The ground given in both the applications for absence of the learned advocates was that they were busy with some other matter in some other Court when these two matters were called out before me for admission. This ground has not been controverted by the other side in any of these two matters; and therefore, I must proceed on the basis that the learned advocates could not appear before me at the stage of admission, because they were engaged in some other matters before other Judges of this Court. While saying this, I may also make one thing clear that when the matters were called out for admission along with several other matters fixed on that day no mention was made on behalf of any of these two advocates before me that the concerned advocates were busy in some other Courts and therefore, the matter may be kept back for, sometime in order to enable them to come and make their submissions in this Court; nor was any of these matters transferred to another advocate under the right given to an advocate under Rule 17 of the High Court Appellate Side Rules, 1960 which reads:
17. When Advocate may transfer brief:- An Advocate may transfer his brief in a case to another Advocate even in the absence of any authority from his client when he is prevented or is likely to be prevented from attending to the case by reason of his being engaged in another Court.
I do not say that it was incumbent on these two learned Advocates to transfer these two matters to another advocate, because they were engaged or were likely to be engaged in some other Court. I, only take note of the fact that this right was not exercised in the present case.
4. The question which has cropped up for consideration in both these matters is whether the two orders as aforesaid passed by me on 1-7-1971 in the two proceedings can be set aside by me; and the matters can be restored or re-admitted and put up for preliminary hearing again. In answering this question, the first consideration is whether the orders which have been reproduced by me earlier, can be said to be orders dismissing the matters on merits and not dismissing them for default. So far as Mr. Vin in the second appeal was concerned, he did not seriously dispute the position that the order reproduced earlier amounts to an order of dismissal on merits and not an order of dismissal for default. But the substance of his argument was that such an order of dismissal on merits cannot be passed under order 41, Rule 11(1) of the Code, when the party or his advocate is absent on the date fixed for hearing the party or his advocate. The submission was that there was no jurisdiction in the Court to pass such an order and that Rule 11(1) of Order 41 of the Code contemplates hearing of the party or his pleader before the matter is dismissed summarily. It was also urged that the only course left open to the Court while dealing with a matter fixed for hearing under Rule 11 of Order 41 is to adjourn the matter if the party or his pleader does not appear and make submissions or to dismiss the matter for default under Sub-rule (2) of Rule 11. According to Mr. Vin, there being no jurisdiction in this Court to dismiss the second appeal summarily in the absence of the appellant or his advocate, the order passed by this Court is on the face of it illegal and a nullity and therefore, the order can be reviewed either under the provisions relating to review or under Section 151 of the Code.
5. Mr. Mankad urged in the first instance that the order passed by me as aforesaid is not an order on merits and it is an order dismissing the revision application for default; and therefore, the Court is concerned only with finding out whether there was sufficient cause for non-appearance of Mr. Mankad. If I were to agree with him on this catenation, then no further question would arise and I would have restored the matter to file, because it is not challenged that Mr. Mankad was engaged in some other Court when this matter was called out; that in itself is sufficient cause for its restoration. This could be done only if the order passed by me can be treated as an order dismissing the revision application for default. Mr. Mankad then contended that the order passed by me was without hearing him and was in breach of the Rule known as audi alteram partem and was, therefore, a nullity. In that case, according to Mr. Mankad, the order passed can be reviewed either under the specific provisions about review in the Code or under Section 151 and the matter may be restored and fixed for re-hearing. So far as the first contention of Mr. Mankad that this is not an order of mens 'is concerned, the order reproduced earlier is quite clear and feature can de no doubt on a bare reading of that order that it is an order passed on merits and not an order dismissing the matter on account of default of appearance. It was, however, urged that inspite of this explicit language of the order, it cannot amount to an order passed on merits because for passing an order on merits, the party or his advocate should be heard. The second contention urged by Mr. Mankad was that the order would have been an order on merits if the record and proceedings had been called for and after going through the whole record, the order was passed. In my opinion, none of these two contentions is tenable. The order itself shows that the judgments of the Courts below were gone through. Now, the revisional jurisdiction under Section 115 of the Code is a limited jurisdiction of the Court and the Court is concerned with binding out whether the case would prima facie fall within Clauses (a) or (b) or (c) of that section. If the Court, after going through the judgments of the Courts below comes to the conclusion that prima facie the case was such that interference was not called for and rejects the revision application, it is an order on merits. It is not necessary for passing such an order that the record and proceedings should be called for and the record and proceedings should be gone through with a view to deal with each reason that the Courts below have given in support of their conclusions. Therefore, the second contention of Mr. Mankad on this point cannot be maintained.
6. Coming to the first contention, Mr. Mankad urged that the opportunity to be heard was not given because the advocate was prevented by sufficient cause from arguing the matter and the order was passed without hearing him. The contention appears to be that it is incumbent upon the Court dealing with a matter like this, not merely to give an opportunity to the applicant's advocate to be heard, but to see that he is actually before the court and makes his submissions. The application of the rule of audi alteram partem is not called for in the present case, for the simple reason that admittedly the matter was notified on the Board of this Court for admission and thus a reasonable opportunity for being heard was given to Mr. Mankad for the petitioner in the revision application. If he did not appear and thereby did not avail of the opportunity or if due to certain circumstances stated by him he was unable to avail of that opportunity, it cannot be said that the order was passed without giving him an opportunity of being heard. If we were to agree with the submission of Mr. Mankad that in a case where there was sufficient cause for the advocate for the petitioner not to appear when the matter was called out for preliminary hearing, there was a breach of the rule of audi alteram partem, a state of chaos and confusion will result by making the legality or otherwise of the order passed by the court dependant upon certain uncertain circumstances which naturally would not be known to the court when the order in question was passed. Thus the order passed would be a nullity, (if we accept the submission of Mr. Mankad), with the result that order can be challenged not only in the present proceeding for restoration but can be also challenged in future in any other collateral proceedings. Therefore, without applying for restoration also a party may in another proceeding be able to show that there was no finality attached to the decision arrived at by the Courts below in as much as the order dismissing the revision application was a nullity on the ground that the petitioner's advocate was busy in some other Court or could not appear for sufficient reasons and was not heard. What the law contemplates is only giving of a reasonable opportunity to the petitioner or his advocate to be heard at the preliminary hearing. If that opportunity is not availed of or due to certain circumstances like the present, the advocate is unable to avail of that opportunity, the order passed in his absence cannot be said to be a nullity on the basis that no opportunity of being heard was given to the advocate of the petitioner. It is, therefore, clear that the order passed in the matter of Mr. Mankad cannot be said to be one dismissing the matter for default not being an order on merits, because the party or his advocate was not heard.
7. The submissions made by Mr. Vin with respect to the dismissal of his Second Appeal may now be examined.
8. In support of his submission that the Court has no jurisdiction or power to dismiss an appeal summarily on merits in the absence of the appellant or his pleader, Mr. Vin referred to certain provisions of Order 41 of the Code. He was also fair enough to state that in one decision of the Allahabad High Court, a view contrary to his contention is taken, which view, in his submission, is not correct. This decision is reported as Prem Prakash v. Ram Pratap : AIR1967All47 . Mr. Vin invited my attention to Rules 11, 16, 17, 19 and 21 of Order 41 of the Code, which are reproduced hereunder:
11. Power to dismiss appeal without sending notice to Lower Court: (1) The Appellate Court after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.
(2) If on the day fixed or 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.
(3) The dismissal of an appeal under this rule shall be notified to the court from whose decree the appeal is preferred.'
16. Right to begin :-() On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.
(2) The court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply.
17. Dismissal of appeal for appellant's default.
(1) Where on the day fixed, or 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.
Hearing appeal ex parte :- (2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
19. Re-admission of appeal dismissed for default:- Where an appeal is dismissed under Rule 11, Sub-rule (2) or Rule 17 or Rule 18, the appellant may apply to the Appellate court from the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
21. Re-hearing on application of respondent against whom ex parte decree made':- Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.
9. One thing is quite clear on a bare reading of Rule 11(1) of Order 41 of the Code, viz. that before exercising the power to dismiss the appeal without sending notice to the lower Court and to the respondent, it is obligatory on the part of the Court to fix a day for hearing the appellant or his pleader and to hear him accordingly if he appears on that day. According to Mr. Vin, summary dismissal can be ordered under Rule 11(1) only if the appellant or his pleader has been heard on the day fixed for hearing; and that there is no power or jurisdiction in the Court to dismiss an appeal summarily without hearing the appellant or his pleader, even though they may remain absent out of gross negligence. According to the submission of Mr. Vin, the only course open for the Court in such a case is either to adjourn the matter to some other date for preliminary hearing or to dismiss it for default as contemplated by Sub-rule (2) of Rule 11. It was urged that personal hearing or hearing through an advocate is a precious right conferred on the appellant by the procedural law of our land viz. Code of Civil Procedure in the present case; and therefore, an appeal cannot be dismissed on merits summarily without hearing the appellant or his pleader. He also pointed out that under Sub-rule (2) of Rule 1 of Order 41, the memorandum of appeal has to set forth only the grounds of objection to the decree appealed against 'without any argument or narrative'. He urged that it is only on account of a personal hearing that the appellant or his advocate would be able to substantiate the grounds set forth in the memorandum of appeal by appropriate arguments and to point out the defects in the conclusion arrived at by the Court below. Now, this is exactly why a provision has been made under Rule 11(1) for giving of an opportunity to the appellant or his pleader to be heard and to substantiate the grounds mentioned in the memorandum by arguments. Therefore, so far as the personal right of hearing is concerned, it has been conferred in terms on the appellant or his advocate; and if none of them avails of it or are unable to avail of it, (may be for reasons beyond their control), the power of the Court to dismiss the appeal on going through the judgment and the record, if it is sent for, is not affected. Mr. Vin then pointed out that under Rule 16 the appellant has to be heard in support of the appeal and if the Court does not dismiss the appeal at once, the respondent has also to be heard; and the appellant would be entitled to reply. Under Rule 17, it was urged, that in case of the absence of the appellant or his pleader when the appeal is called for hearing, there is no jurisdiction conferred on the Court to decide the appeal on merits; and the Court can only make an order of dismissal of the appeal in default. Though, the scope and effect of Rule 17 does not come up for consideration in the present case, because that rule comes into play after the appeal has been admitted, Mr. Vin sought to derive support to his contention with regard to Rule 11 from this Rule. He urged that if the Court cannot dismiss an appeal which has been admitted, on merits without hearing the appellant or his advocate, it would be much more so in case of an appeal fixed for preliminary hearing under Rule 11. In dealing with this contention, the first thing to be pointed out is the different language of the two provisions, viz. Rules 11 and 17.
10. It is not necessary for me to decide as to what is the scope of Rule 17 of Order 41 in the present case. There is a conflict of judicial opinion on this point, to which reference will be made at a later stage. It is sufficient to state for the purposes of the present proceedings that there is good deal of divergence in the language employed in the two rules, viz. Rules 11(1) and 17(1). Evidently, two powers are conferred when the Court is dealing with an appeal at the preliminary stage under Rule 11; and they are (1) power to dismiss an appeal summarily, and (2) power to dismiss the appeal for default. The contention advanced by Mr. Vin is based on the assumption that the power to dismiss an appeal summarily under Sub-rule (I) of Rule 11 is conditioned by appearance of the appellant or his advocate in the proceedings. Thus, the submission in effect is that where the condition precedent for the exercise of the power is not fulfilled on account of the absence of the appellant or his pleader, there is no power in the Court to dismiss the appeal summarily Now, the phrase 'and hearing him accordingly if he appears on that day' occurring in Rule 11(1) clearly shows that the power to dismiss the appeal summarily is not conditioned by the appearance of the appellant or his advocate in the proceedings. All that Sub-rule (1) of Rule 11 lays down is that it is obligatory on the Court to give a reasonable opportunity to the appellant or his advocate 'to be heard and to hear him if he appears before passing an order dismissing the appeal summarily. Therefore, if on the date fixed for hearing under Rule 11, the appellant or his advocate appears, it is obligatory on the Court to hear him and then pass the order. That does not mean, however, that if the appellant or his advocate does not appear to make his submissions and does not avail of the opportunity afforded to him under Rule 11, the Court cannot dismiss the appeal summarily after going through the judgments of the Courts below and the grounds of appeal. A power to dismiss an appeal summarily is, therefore, given in explicit terms of Sub-rule (1); and it is only conditioned by the obligation to fix a day for hearing and to hear the appellant or his advocate 'if he appears on that day'. Therefore, the submissions of Mr. Vin based on the provisions of Rules 16, 17, 19 and 21 have no bearing on the interpretation of Rule 11 of Order 41. Mr. Vin did submit that even in case of an appeal heard exparte and decided against the respondent, the respondent has been given a right to apply for re-hearing in order to enable him to satisfy the Court that inter alia he was prevented by sufficient cause from appearing when the appeal was called on for hearing. Mr. Vin submitted that if such a right is given to the respondent, the interpretation urged by Mr. Vin with regard to Rule 11 would be the only correct interpretation. The provisions of Rules 19 & 21 in my opinion have no bearing on the interpretation of Rule 11(1).
11. We may now come to the decision of the Allahabad High Court reported as Prem Prakash v. Ram Pratap (supra). That decision was with regard to the interpretation of the provisions of Rule 11(1) and the High Court held that this provision can be given only one interpretation that in case of absence of the appellant or his pleader in spite of communication to him of the day for hearing, it is in the discretion of the Appellate Court either to dismiss the appeal on merits by proceeding under Sub-rule (1) or to dismiss the appeal for default by proceeding under Sub-rule (2). The argument based on the principles of natural justice, as advanced by Mr. Mankad in his revision application, was also dealt with by the said High Court, observing 'The principles of natural justice merely make it necessary that a reasonable opportunity of hearing be given to a party. It is not that he should be given a hearing in the manner he desires. Giving an information of the day of hearing of the appeal under Order 41, Rule 11 to the appellant or his pleader, amounts to giving an opportunity to make his submissions before the Court. In case he does not avail of that opportunity, he cannot later on say that an order passed on merits in his absence violated the principles of natural justice or that the appeal had been decided without giving him a hearing.' If the interpretation of Rule 11 submitted by Mr. Via were correct, Sub-rule (1) of that Rule would not have been worded in the language as it exists today. In that case, the purpose could have been served by simply saying that after fixing a date for hearing, the appellant of his pleader and after the hearing the appellant or his pleader, the Court may dismiss the appeal without sending notice to the Court from whose decree, the appeal is preferred and without serving notice on the respondent or his pleader. The phrase 'and hearing him accordingly if he appears on that day' occurring in Sub-rule (1) of Rule 11 is quite clear on the meaning to be given to that rule.
12. It is thus clear that Rule 11(1), provides for hearing of the appellant or his advocate 'if he appears' on the day fixed hearing him; whereas Rule 17(1) merely provides for non-appearance of the appellant when the appeal is called on for hearing and lays down that in that case the Court may make an order that the appeal be dismissed. This difference in the language of Rules 11(1) and 17(1) is very material. If in both the cases, the intention of the Legislature was to provide that in the absence of the appellant or his pleader, the appeal cannot be decided on merits, and the Court can either adjourn it or dismiss it for default, this difference in language of Rules 11(1) and 17(1) would not have occurred at all. So far as Rule 11(1) is concerned, the intention of the legislature is clear and explicit. It only gave a mandate to the Court to fix a date for hearing the appellant or his pleader and hear him accordingly if the appellant or his pleader appears on that day. The language of Rule 11(1) itself shows that the Legislature was not providing for what the appellate Court should do if the appellant or his advocate does not appear on the date fixed for hearing of the appeal under the Rule, because this provision is made in Rule 1.1(2). Reading Rule 11 as a whole it is clear that two alternatives were in terms given to the Court in a case falling under the Rule. The Court can under Sub-rule (1) dismiss an appeal on merits even in the absence of the appellant or his pleader or under Sub-rule (2) it can dismiss it for default of appearance. Of course, there is inherent power to adjourn the matter to some other date also. In Rule 17(1) the Legislature was providing what the Court may do when the appellant or his pleader does not appear on the date fixed for hearing of the appeal or on any other date to which the hearing may be adjourned. This is one reason why we should not enter into the discussion as regards the scope of Rule 17(1) in the present case. So far as the interpretation given to that rule by our High Court is concerned, Mr. Vin for the appellant has pointed out to me a judgment of Mr. Justice S.N. Patel in Civil Revision Application No. 2 of 1968 decided on July 12, 1972. (Feraising Bajusing v. Hargovind). Therein the learned Judge has taken the view that under Rule 17, if the appellant or his pleader does not appear on the date of hearing of the appeal, there is no jurisdiction in the Court to decide the appeal on merits. But it can either adjourn the appeal or dismiss it for default so as to enable the appellant to apply for restoration of the appeal under Rule 19 of Order 41 and show sufficient cause in support of that application. In this connection, however, I may incidentally point out that as to the scope of Rule 17(1), there is a conflict of judicial opinion so far as other High Courts are concerned. The Full Bench of the Allahabad High Court in Babu Ram v. Bhagwan Din : AIR1966All1 , having considered contrary opinion expressed by other High Courts and having also considered a decision of the Supreme Court reported as Sukhpal Singh v. Kalyan Singh : 2SCR733 , has come to the conclusion that an appeal can be dismissed on merits under Rule 17 in the absence of the appellant or his advocate on the date of hearing. Of course, several other High Courts have taken a contrary view that it cannot be so dismissed; and this view is to be found in Musaliarakath Muhamad v. Manaviakrama A.I.R. 1923 Madras 13, Taher Sheikh v. Otaruddin Howladar : AIR1929Cal475 , Maung Than Ge v. Maung Po Thin A.I.R. 1925 Rangoon, 96. Digendra Chandra v. Radha Balay A.I.R. 1953 Assam, 191, Kundha Singh v. Punjab State and Mosafir Mahton v. Mt. Bachani : AIR1963Pat1 . In the last decision, the Patna High Court over-ruled its previous decision reported as Daulat Singh v. Kesho Prasad Singh A.I.R. 1921 Patna, 325 which took the view that an appeal under Rule 17(1) can be decided on merits in the absence of the appellant or his advocate. Our High Court in the decision mentioned above has taken the view which is in accord with the majority view on this point. But the question of the scope and interpretation of Rule 17 does not arise before me, because these proceedings have not been decided on merits in the absence of a party or its advocate after admission.
13. Apart from the difference in language of Rules 11 and 17, there is another factor also which may have led the Legislature to provide that under Rule 17(1), the appeal cannot be decided on merits, but has to be either adjourned or dismissed for default (assuming that the view taken by different High Courts including our High Court is correct). When an appeal is being heard under Rule 17(1) the Court had at an early stage while admitting the appeal under Rule 11(1), already applied its mind and had found that the appeal is fit one to be admitted. This would mean that it is a fit case in which the correctness or otherwise of the judgment of the lower Court requires to be examined by the appellate Court. Therefore, any decision as regards the interpretation of Rule 17 would not be helpful in the present case.
14. Mr. Vin relied upon certain observations of the Punjab High Court in Kundha Singh v. Punjab State in which the question which arose was regarding the interpretation of Rule 17 of Order 41 and not of Rule 11. In the course of the judgment, an earlier decision of the Allahabad High Court in Chiman Lal v. Zahur Uddin : AIR1938All548 , was referred to by the learned Judge and in discussing that case, the learned Judge examined the view that the appellate Court was not debarred from deciding an appeal on merits when the appellant failed to appear. The learned Judge said that the Allahabad High Court interpreted the provisions of Rule 11 taking the view that under Rule 11(1) of Order 41 the appellate Court could dismiss the appeal on merits even if the appellant did not appear. The further observation which was made by the Allahabad High Court was that this power of the appellate Court under Rule 11 was not taken away when a notice was issued to the respondent and the case was being decided under Rule 17 of Order 41, Civil Procedure Code. In that case also, according to Allahabad High Court, the appellate Court could dismiss the appeal on merits even if the appellant did not appear. The learned Judge of the Punjab High Court in discussing this case observed : 'With very great respect to the learned Judges, in my opinion the interpretation put by them on Order 41, Rule 11(1), Civil Procedure Code, is not correct.' Then Rule 11(1) was reproduced and the learned judge further observed : 'A bare reading of these provisions would show that under Sub-rule (1) the Court can dismiss the appeal on merits only if the appellant or his pleader is present and either of them is heard on the date fixed for the purpose. If, on the other hand, neither of them is present on that date, the Court will dismiss the appeal under Sub-rule (2) of this very Rule. Sub-rule (2) of Rule 11 when read with Order 41, Rule 19, clearly shows that under Sub-rule (2) of Rule 11, the Court will dismiss the appeal in default and not on merits, because under R. 19 the appellant can ask for the readmission of the appeal if he could prove that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing. '(Emphasis supplied). With very great respect, these observations read in Rule 11(1) something more which is not there. There is nothing in Rule 11(1) to suggest that an appeal could be dismissed on merits only if the appellant or his pleader is present and either of them is heard. To read the word 'only' in that provision is, with respect again, doing violence to the plain language of that Rule. The observation that 'the Court can dismiss the appeal on merits only if the appellant or his pleader is present and either of them is heard on the date fixed for the purpose' implies that if the appellant is present and does not make any submission, the appeal cannot be decided on merits. This implication is negatived by the decision of the Supreme Court in Sukhpal Singh v. Kalyan Singh : 2SCR733 . In that case the first appeal of the appellant came up for hearing before the High Court under Order 41, Rule 17; and the appellant's counsel stated that he had no instructions to represent the appellant. The appellant gave an application for adjournment, but it was rejected. The appellant though given an opportunity to be heard was not prepared to address the Court. Thereupon, the High Court dismissed the appeal which dismissal was treated as a dismissal under Rule 17 on default of proof i.e. dismissal on merits. This dismissal was upheld by the Supreme Court. The position that a Court can decide the appeal on merits when the appellant was present and is not prepared to address the Court, was not even disputed before the Supreme Court. The contention was that the High Court should have gone through the record' raised points for determination and given its decision thereon and reasons therefore. This catenation based upon Order 41, Rule 31 was negatived by the Supreme Court observing as under:
We, therefore, repel the contention for the appellant that the High Court had to decide the appeal after going through the record of the case and the judgment of the court below and must have complied with the provisions of Rule 31 of Order XLI, C.P.C., when the appellant did not address the court.
To say that an appeal can be dismissed summarily only if the appellant is not only present but is heard would create a peculiar situation. The appellant, as in the case before the Supreme Court, would say that he is not prepared to submit the arguments. In that case, the Court possibly cannot dismiss the appeal for default, because the appellant had appeared and he was not absent; nor can it proceed to decide the appeal on merits if the observations of the Punjab High Court, with respect, are correct. Therefore, the only alternative left to the Court would be to adjourn the appeal out of helplessness. I, therefore, respectfully differ from the aforesaid observations of the Punjab High Court in so far as they relate to the interpretation of Rule 11(1) of Order 41 of the Code. In fact, no question of interpretation of the provisions of Rule 11(1) arose before that High Court; and the aforesaid observations are in the nature of obiter dictum.
15. It is thus clear that none of the two orders passed by me is illegal. These orders were passed in exercise of the jurisdiction vested in this Court to dismiss the matters after considering the merits of the case, instead of dismissing them in default of appearance.
16. Mr. Mankad then urged that even if the order is one on merits, it has to be set aside; and for this purpose he relied upon a decision of the Supreme Court reported as Swarth Mahto v. D.N. Singh (1972) 2 Supreme Court Cases, 873, in which a question arose under Section 417(3) of the Criminal Procedure Code. In that case, in the cause list published for hearing of the acquittal appeal, the name of the appellants or their advocate was not shown, with the result that the advocate did not appear at the hearing had the appeal was allowed by the High Court. Thus, in that case the appellants or their advocate had no opportunity to be heard and the appeal was decided without that opportunity itself. In the circumstances, the Supreme Court while exercising its appellate jurisdiction, set aside the order of conviction and sentence and remitted the matter to the lower Court for hearing the appellants and their advocate. This was a case in which no opportunity to be heard was given to the accused persons or their advocate before allowing the acquittal appeal and convicting the accused. This decision does not help Mr. Mankad.
17. Mr. Mankad then urged that in exercise of the powers of review or powers under Section 151 of the Code, the order passed on merits should be set aside and the matter should be reheard for the purpose of admission. He was not able to show how this power can be exercised in a case like the present. I am unable, to therefore, to agree with this submission.
18. No other contention was raised.
In the result, the office note filed by Mr. Mankad in Civil Revision Application No. 602 of 1971 will be rejected. Miscellaneous Civil Application No. 409 of 1971 in Second Appeal No. 218 of 1971 filed by Mr. Vin will also stand rejected; and the Rule in that case will stand discharged. There will be no order as to costs in both these proceedings looking to the question involved which has arisen for determination of this Court for the first time so far as Rule 11(1) of Order 41 is concerned.