1. This appeal raises an important question of interpretation of Order 41, Rule 17 (1), C. P. C. which arises in the following circumstances :
2. The appellants filed an appeal against a judgment and decree of District Judge, Bhadarwah, which in their absence, as well as in the absence of their counsel, was dismissed by a learned Single Judge of this Court, on merits, on 20-12-1974. Application under Order 41, Rule 19 for its re-admission was also dismissed by him on 14-3-1975 by a brief order which runs as under :--
'The application is dismissed as no ground for admitting the same is made out.'
The appellants then moved an application for leave to file an appeal against the said order dated 14-3-1975, which was granted. Hence the appeal.
3. Mr. Parihar's contention in the appeal is twofold. According to him, the learned Single Judge had no jurisdiction to decide the appeal on merits in the absence of the appellants, or their counsel, as such, order dated 20-12-1974, even if it purports to dispose of the appeal on merits, shall still be construed to have been passed under Rule 17 (1) for default, and not on merits, entitling the appellants to make an application under Rule 19 for re-admission of the appeal. His next contention is that an application under Rule 19 could not have been dismissed in lirnine, and the learned single Judge was bound to afford the appellants an opportunity of showing sufficient cause for their absence on 20-12-1974, when he proceeded to dismiss their appeal on merits. Mr. Thakur's contention on the other hand is that the learned single Judge had ample power to dispose of the appeal on merits, even in the absence of the appellants, or their counsel, under the provisions of Rule 17 (1), and no application under Rule 19 was competent, for the Rule was attracted to only those cases where an appeal was dismissed for default of appearance of the appellants under Rule 17 (1). There is, however, no dispute on the point that in case an appellate Court has power to dismiss an appeal on merits in the absence of the appellant, then an application under Rule 19 for its re-admission does not lie. The fate of the appeal, therefore, turns upon the interpretation of Rule 17 (1). Rule 17 reads as below :
'(1) Where on the day fixed, or on 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.
(2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.'
4. There is a cleavage in judicial opinion over the ambit and scope of Rule 17 (1). One view which is near unanimous is that the Court has only two options under Sub-rule (1) i. e. either to adjourn the appeal, or to dismiss it for default of appellant's appearance. It has no third option of disposing of the same on merits, which is only possible after hearing both the parties as contemplated by Rule 30, or at least the appellant as provided under Rule 16. According to this view, a subsequent change in the language of Sub-rule (1) of Rule 17 by substitution of the words ''the Court may make an order that the appeal be dismissed' for the words 'the' appeal shall be dismissed for default', which occurred in Section 556 of the Code of Civil Procedure of 1882, did not make any difference. The decisions wherein this view has been taken are : Musaliarakath Muhamad v. Manaviak-rama the Zamorin Rajah Avergal, AIR 1923 Mad 13, Taher Sheikh Chowkidar v. Otaruddi Howldar, AIR 1929 Cal 475, Digendara Chandra Pal v. Radha Ballav Pal, AIR 1953 Assam 191, Kundha Singh v. The Punjab State, AIR 1962 Punj 82, Mosafir Mahton v. Mt. Bachani, AIR 1963 Pat 1, Chandra Stores v. Cloth Merchants Association, AIR 1964 Raj 197, Deo Dutta Singh v. Ram Naresh Singh, AIR 1973 Pat 166 and Emmanual Simon Peters v. Mrs. Alice Peters, AIR 1976 Delhi 148.
A contrary view has, however, been taken by the Allahabad High Court, according to which, the legislature by substituting the aforesaid words in Sub-rule (1) of Rule 17 for the words which originally existed in Section 556 of the repealed Code of 1882 were aimed at making the sub-rule permissive in character and the Court had not only two but three options open to it, i. e. either to adjourn the appeal, or to dismiss it for default in appearance of the appellant, or to dispose it of on merits. The decisions reflecting the aforesaid view are : Chimman Lal v. Syed Zahoor Uddin, AIR 1938 All 548, Gujrani v. Ram Rati, AIR 1965 All 547, and Babu Ram v. Bhagwan Din, AIR 1966 All 1 (FB).
5. It is thus obvious that there is preponderance of authorities supporting the view that an appellate Court cannot dispose of an appeal on merits in the absence of the appellant and the contrary view has been taken by the High Court of Allahabad alone. I am in respectful agreement with the view taken by the High Courts of Madras, Calcutta, Assam, Rajasthan, Punjab, Patna and Delhi, as in my opinion, it is the only view possible on the plain language of Rule 17 (1) and some other provisions contained in the Code.
6. Rule 17 runs into two parts. Its first part deals with a situation where the appellant is absent, whereas its second part deals with a situation where the respondent is absent. Sub-rule (2) gives a clear mandate in favour of ex parte hearing of the appeal on merits, whereas Sub-rule (1) does not say so in clear terms. Where an appeal has been dismissed under Rule 17 (1), an application for its re-admission can be made under Rule 19. Similarly, where an appeal has been dismissed on merits in the absence of the respondent, he too can make an application for its re-hearing under Rule 21. Significantly, two different expressions have been used in Rules 19 and 21. Whereas the former speaks of re-admission of the appeal, the latter speaks of its rehearing. These two expressions have been purposely used by the legislature to convey different meanings. There can be no question of re-hearing, unless an appeal has been heard previously. Hearing clearly implies hearing on merits, whether it is a hearing under Rule 11, or Rule 16 or Rule 17 or Rule 30 of Order 41. In case the legislature contemplated hearing of an appeal on merits in the absence of the appellant as well, nothing could have stopped it from saying so in clear terms in Sub-rule (1) also, as it said while enacting Sub-rule (2). Even in the absence of any specific words, such an intention could have been gathered, had the legislature used the expression 'rehearing' in place of the expression 're-admission' in Rule 19, as it did in the case of Rule 21. It is manifest that while enacting Sub-rule (1) the legislature never contemplated dismissal of an appeal on merits as it did while enacting Sub-rule (2). It was for this reason that it employed two different expressions 're-admission' and 'rehearing' in Rules 19 and 21, respectively. This inference is further fortified by similar expressions used in Rules 3, 5 and 8 of Order 9, which are in pari materia with Order 41, Rule 17 (1), inasmuch as, these Rules deal with dismissal of suits, not on its merits, but for default of the plaintiff. In dealing with Rule 17 (1) a Division Bench of the Patna High Court in Mosafir Mahton v. Mt. Bachani, AIR 1963 Pat 1 made the following observations :
'..... This view is supported by the contrast of the language of Order XLI, Rule 17 (2) which empowers the appellate Court to hear the appeal ex parte 'where the appellant appears and the respondent does not appear'. For these reasons we hold that upon a proper interpretation of Order XLI, Rule 17 (1), the appellate Court has no jurisdiction to hear the appeal on merits where the appellant does not appear at the time the appeal is called on for hearing. The only course open to the appellate Court in these circumstances is to adjourn the case to another date, or to make an order dismissing the appeal ex parte. This view is borne out by the decision of the Madras High Court in Musaliarakath Muhammad v. Manavik-rama, ILR 45 Mad 882 : (AIR 1923 Mad 13), the decision of the Calcutta High Court in Taher Sheikh v. Otaruddi Howladar, AIR 1929 Cal 475, and the decision of the Allahabad High Court in Nasir Khan v. Itwari, AIR 1924 All 144. Reference was made on behalf of the respondent to a decision of a single Judge of the Patna High Court in Daulat Singh v. Kesho Prasad Singh, AIR 1921 Pat 325, but with great respect we think that this case has not been correctly decided.'
7. The proposition, that Rule 17 (1) does not envisage dismissal of an appeal on merits, has not been disputed by the High Court of Allahabad as well. Its Full Bench in Babu Ram's case (AIR 1966 All 1) (supra) has, however, taken the view that the change introduced in the language of Rule 17 (1) in the Code of 1908, is not without any purpose. By substituting the expression 'the appeal shall be dismissed in default', which occurred in Section 556 of the Act of 1882, for the expression, 'the Court may make an order that the appeal be dismissed' employed in Rule 17 (1), the Legislature intentionally made the said Rule permissive in character, and gave three options to the court; i. e. either to adjourn the appeal, or to dismiss it for default of the appellant's appearance, or to dispose it of on merits by invoking Rule 30. This is borne out from the following observations made by the Full Bench in its judgment :
'It does not admit of any doubt that the dismissal provided for by Order XLI, Rule 17 (1) is not a dismissal on merits, but a dismissal only for default of appearance. On the language of the sub-rule the order that the appeal be dismissed has to be casually connected with the situation mentioned therein, and the order of dismissal which the appellate Court is empowered to pass thereunder cannot have its basis in anything else except the failure of the appellant to appear when the appeal is called on for hearing.....'
And, again :
'..... I have examined these decisions with great care and profound respect, but I have failed to see how this limitation can be placed upon the discretion of the Court and from where it can be derived, once the existence of the discretion is accepted. Of course, if there had been nothing in the Code empowering the Court to dispose of the appeal of an appellant who is absent at the hearing in any other manner save the one provided by Order XLI, Rule 17 (1) it would have been indisputable that in case the appeal is not adjourned it has to be dealt with in the manner provided by the said provision. But if there is under the Code a general power of dealing with an appeal otherwise as well, that power, unless expressly excluded will remain exercisabie by the Court even where Order XLI, Rule 17 (1) is applicable. In that case the power conferred by Order XLI, Rule 17 (1) has to be re-garded only as an additional power that may be used in the situation mentioned in it and not as also a limitation upon the generality of the power given elsewhere. The general power of the Court of appeal is contained in Rr. 30, 32 and 38 of Order XLI.'
8. It is, therefore, manifest that there are no two opinions on the point that a Court does not have the power to dispose of an appeal on merits under Rule 17 (1) as such, when the appellant is absent. The view taken by the Allahabad High Court in Babu Ram's case (AIR 1966 All 1) (FB) (supra), however, is that an appellant shall be deemed to have been heard within the meaning of Rule 30, even in a case where he has been afforded an opportunity of being heard, no matter whether he fails to appear to argue his appeal when it is called for hearing, or fails to argue it even when he is present in the Court. In taking this view the Court relied upon certain observations made by their Lordships of the Supreme Court in Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146 at different places, which were summed up by the Full Bench to make a complete whole as follows :
'Where the appellant and his pleader are not prepared to address the Court there is no hearing and, therefore, nothing is shown to the appellate Court as to why it should interfere with the decision of the Court below. The burden of proof is on an appellant to show that the decision which he appeals from was wrong and where he does not address the Court at all, it appears to us that there is no point raised for determination and it is not necessary, therefore, to give a decision on any point or the reasons for the decision, It is sufficient for the court to pass an order of dismissal for default. Such an order does not necessarily mean that the appeal is dismissed for default of appearance. In such circumstances the order means that the appeal is dismissed for default of proof.'
9. There can be no manner of doubt that the moment the Court informs a party that its case will come up for hearing on a particular day, it shall be deemed to have afforded to it an opportunity of being heard. It cannot go further and compel it to argue its case. Nevertheless, the opportunity which the Court provides should be real, which a party can avail of, if it so chooses. Where it is not real, e. g. where the notice is too short, or where the party is prevented from availing it for reasons beyond its control, e. g. where it is suddenly taken ill, the same would be rendered illusory and, therefore, no opportunity at all. The Allahabad High Court in Baboo Ram's case (AIR 1966 All 1) (FB) (supra) took both these elements for granted. It assumed that a party served with a reasonable notice would be always deemed to have had the opportunity of being heard, and it further assumed that the party would be always in a position to avail of the opportunity. With respects, if I may say so, the second assumption may not be always right, for the party absenting itself on the date of hearing may have excellent reason for justifying its absence. A respondent may - have an opportunity of justifying his absence in case he would make an application under Rule 21, but an appellant in similar circumstances shall have none. Dismissal of an appeal on merits in the absence of the appellant may often times render the decision of the Court highly iniquitous. There is no understandable reason for such an unequal treatment to the parties similarly situated.
10. The facts in Thakur Sukhpal Singh's case (AIR 1963 SC 146) (supra) are clesrly distinguishable, and on the ratio of that judgment it is not possible to conclude that a Court can dispose of an appeal on merits in the absence of the appellant. In that case, an appeal had been 'dismissed for default' by the High Court of Madhya Bharat in the presence of the appellant, as he had expressed his inability to argue the appeal himself, and his request for engaging a counsel had been turned down on the ground that it was not bona fide. While dismissing the appeal, the Court had relied upon a Bench decision of the Allahabad High Court reported as Mathura Das v. Narain Dass. AIR 1940 All 248, wherein it had been held that dismissal of an appeal for default in the presence of the appellant, who is unwilling to argue his appeal, tantamounted to dismissal for default of proof and not to dismissal for default of appellant's appearance. In the appeal taken to the Supreme Court from the aforesaid judgment, it was contended that the judgment was bad, because it failed to take into account the record of the trial Court as well as the grounds contained in the memo of appeal, which was a mandatory requirement of Rule 31.
This argument was repelled by their Lordships, for the reason, that unless and until the appellant discharged his burden of showing that the judgment under appeal was wrong by addressing arguments in the case, the appellate Court would be under no obligation to refer to the record of the case, including the grounds mentioned in the memo of appeal. Dismissal of an appeal for default in such circumstances in their Lordships' opinion would not be a dismissal for default in appearance, but would be a dismissal for default in proving the judgment under appeal to be wrong and, therefore, a judgment on merits. While approving the view taken by the Allahabad High Court in Mathura-dass's case (AIR 1940 All 248) (supra) their Lordships observed as under :--
'.....We find it difficult to uphold the view that even when no arguments are urged and no reasons put forward in arguments against the correctness of the decision appealed against the appellate Court should peruse the record and find out for itself whether the judgment is right or wrong.
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.'
11. Clearly, therefore, it was not a case where no one was present on behalf of the appellant. On the other hand, it was a case where the appellant was present but was unwilling to argue the case and his prayer for adjournment was found not to be bona fide. In such a case, there can be no manner of doubt, that the appellant may be deemed to have been heard within the meaning of Rule 30. This authority has no application to the facts of the present case, because neither the appellants, nor their counsel, were present on 20-12-1974, when the learned single Judge dismissed the appeal on merits. In taking this view, which in my opinion, is the only possible view in the circumstances of the case, I am supported by the following observations made by Untwalia C, J. as his Lordship then was, in Deo Dutta Singh's case (AIR 1973 Pat 166) (supra) which may be reproduced with advantage as below :--
'The decision of Niamatullah, J., in Mohamadi Hussain's case in AIR 1937 All 284 was not approved. It (its?) overruling by a Division Bench in AIR 1940 All 248 seems to have been referred to with approval. Thinking that the Supreme Court case lays down that in a case of default the appellate Court may dismiss an appeal for default or proceed to dispose it of on merits, the Full Bench of Allahabad Court in AIR 1966 All 1 has obliterated the distinction between a case of non-appearance of the appellant or his counsel and case where he appears but for one reason or the other does not address the court. I am unable to subscribe to this view. My considered opinion is that the decision of the Supreme Court does not in any way disturb the consistent line of authorities of the various High Courts given with reference to Order 41, Rule 17 (1) of the Code that in a case of non-appearance of the appellant simpliciter the Court has no power to dispose of an appeal on merits. The Supreme Court was not concerned with a case of this kind.....'
12. Not only that, Dass Gupta J. speaking for himself in Sukhpal Singh's case (AIR 1963 SC 146) (supra) even went to the extent of saying :
'It appears to me that when a counsel engaged by a party refuses to address the Court on behalf of his client, it is next to impossible for a client to engage another counsel on the spot to argue the case and ordinarily, impossible for the counsel thus engaged to address the Court then and there. It is not also reasonable, in my opinion, to expect that a lay client should be able to argue his appeal. To ask the appellant personally, in circumstances like these, to argue the appeal is to ask for the impossible. It appears to me to be neither fair nor just that when a counsel suddenly withdraws from a case, the lay client should be asked to argue the appeal himself. Justice, in my opinion, requires that in such a case the client should be given some time--however short--to engage a counsel.'
13. I have, therefore, no doubt in my mind that a court has no power to dismiss an appeal on merits when the appellant is not present in the court either personally or through his counsel. The court can either adjourn it, or dismiss it for default of appellant's appearance. Where in such circumstances the court incidentally dismisses the appeal on merits, its order shall be deemed to be one passed by it under Rule 17 (1) and an application for its re-admission under Rule 19 shall be competent. (AIR 1962 Punj 82 (supra), (AIR 1973 Pat 166) (supra), and AIR 1976 Delhi 148 (supra)). Furthermore, the court cannot dismiss such an application summarily, but is bound to give reasonable opportunity to the appellant to establish the cause for his absence by producing evidence, if necessary. (Krishna Charan Mondal v. Chinibasi Mondal, AIR 1925 Cal 269, Gobinda Chandra Mukerjee v. Banku Behari Dass, AIR 1927 Cal 888 and Jatindra Nath Mukerjee v. Surandhani Debi, AIR 1928 Cal 102).
14. In the instant case, admittedly no opportunity was afforded to the appellants to show cause as to why they or their counsel remained absent when the appeal was called for hearing. Their application under Rule 19, as already noticed, was dismissed in limine. This course was not warranted by law. The learned single Judge ought to have given the appellants an opportunity of proving the cause. This he never did. His order, therefore, stands vitiated.
15. For the foregoing reasons, the appeal is allowed, and the order dated 14-3-1975 passed by the learned single Judge dismissing the appellants' application under Rule 19 is set aside. The case will now go back to him with the direction that he will allow the parties opportunity to produce evidence in the appellants' aforesaid application and proceed to dispose of the same after hearing them.
M.B. Farooqi, Ag. C.J.
16. I agree.