1 There are two plaintiffs in this suit, which is for khas possession of land on the ground of abandonment and transfer of a non-transferable occupancy holding by the original tenant. The trial Court found that so far as plaintiff 1's interest was concerned there was an abandonment and unauthorized transfer. As to plaintiff 2, it found that he had recognized the transferee as a tenant and accordingly it passed a decree in favour of plaintiff 1 for joint; possession with the defendant and dismissed plaintiff 2's suit. The defendant appealed and plaintiff 2 cross-appealed or to be more precise filed a cross-objection. On 26th August 1925, the appellate Court passed an order that the pleaders must get ready on the date fixed, namely, 9th September 1925. On 9th, the following order was passed:
The respondent's pleader does not appear, though he was assured that the appeal would be heard to-day. The appellant heard. Judgment to-morrow.
2. On 10th, judgment was postponed till the next day, and on 11th, the learned Subordinate Judge passed the judgment appealed against. He dismissed the defendant's appeal and then proceeded to consider plaintiff 2's cross-objection on the merits, although no one was present on his behalf and found that the view of the Munsif that plaintiff 2 recognized the defendant as a tenant was wrong : and, in the result, he dismissed the defendant's appeal, allowed the cross-objection and decreed the entire suit. The appeal is on behalf of the defendant and the only point that is taken before us is that the Subordinate Judge was not justified in deciding the cross-objection of plaintiff 2 when no one appeared on his behalf. This contention has a good deal of substance in it. Under Order 41, Rule 17, if the appellant does not appear and the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The previous Code contained the words ' the appeal shall be dismissed.'
3. This portion of the rule has been altered in the new Code in order to give jurisdiction to the appellate Court to pass such order as it thinks proper in the circumstances of the case other than dismissing the appeal and further to make the order of dismissal for default not open to appeal. By the words ' the Court may make an order that the appeal be dismissed ' it meant that the Court may dismiss the appeal or may adjourn it to some other date or pass other order, but it certainly does not authorize the Court to consider an appeal in the absence of the appellant and decide it on merits. It was not contemplated by the alteration in the rule to invest the Court with power to decide an appeal on the merits in the absence of the appellant and the reason is this. This appeal was not argued by appellant-plaintiff 2 and, therefore, there was no reply to the appellant's argument by the respondent, that is to say, defendant 1. The law contemplates that the appellate Court must hear both parties to the appeal and then decide it according to its judgment. That is the procedure laid, down in Order 41, Rule 30, Civil P.C. The procedure followed by the Court is wrong and the decree passed by it in favour of plaintiff 2 must, accordingly, be set aside. There are some points in this case which show the impropriety of deciding an appeal in the absence of the pleader for the appellant without giving an opportunity to the other side to reply to such statements as might have been made on behalf of the appellant. The memorandum of cross-objection on behalf of plaintiff 2 was filed on insufficient stamp. That question was not decided by the Court and it should not have been heard without its being properly stamped. Accordingly the order passed with regard to the Court-fee that the plaintiff should get khas possession in the entire lands on his depositing the Court-fee on the memorandum of cross-objection within three days is not the proper order to pass.
4. There is another point with reference to mesne profits. The Munsif said that no evidence had been given as to what would be the amount of- mesne profits. But he gave plaintiff 1 liberty to bring a fresh suit for mesne profits. Now the Subordinate Judge has decreed the plaintiff's whole suit and ordered that mesne profits be ascertained by the lower Court. There is no reason given for it. Besides, as there was no appeal by plaintiff 1, against the order dismissing the claim for mesne profits, the Court was not justified in passing a decree in his favour with regard to mesne profits. All these irregularities are due to the Subordinate Judge taking upon himself to decide the case without having it argued before him by both sides. The decree in so far as it relates to the claim of plaintiff 2 must, accordingly, be set aside. Now the question is as to what order we should pass in this case. If the occurrence had taken place before us and if the appellant was informed of the date of hearing, but was not before the Court on that date the order which we would generally pass was to dismiss the cross-objection. That is the order which the lower appellate Court should have passed. We have jurisdiction to pass such an order in second appeal as we are responsible for the proper disposal of the case according to law.
5. As regards the defendant's appeal before the lower appellate Court it cannot be heard after the concurrent findings of the Courts below and that portion of the present appeal which relates to the interest of plaintiff 1 must stand dismissed with costs. The result is that this appeal is partially allowed, the decree of the lower appellate Court set aside and that of the Court of first instance restored with costs in all Courts against plaintiff 2.