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Supreme Court: Appeal Cannot Be Dismissed on Merits if Appellant Fails to Appear

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Published on: December 03, 2023 at 18:25 IST

The Supreme Court has emphasized that an appeal cannot be dismissed on its merits if the appellant fails to appear during the hearing.

The ruling is grounded in the interpretation of Order 41 Rule 17 of the Civil Procedure Code, 1908, which empowers the court to dismiss an appeal for non-prosecution if the appellant is absent on the scheduled hearing day.

The specific explanation provided in this rule explicitly states that the court is not authorized to dismiss the appeal on its merits in such circumstances.

The bench comprising Justices BV Nagarathna and Ujjal Bhuyan analyzed the provision and affirmed, “The Explanation categorically states that if the appellant does not appear when the appeal is called for a hearing, it can only be dismissed for non-prosecution and not on merits.”

The case in question involved a property dispute, where the appellants filed a suit seeking a permanent injunction against the respondents. The trial court dismissed the suit, prompting the appellants to file a second appeal in the Karnataka High Court.

During the hearing in the High Court, the appellants’ Junior Counsel informed the court about the demise of the Senior Counsel’s cousin brother, resulting in the absence of representation for the appellants. Despite this, the High Court dismissed the appeal on its merits, asserting that there were no valid grounds for consideration.

The aggrieved appellants then approached the Supreme Court, arguing that the High Court had the option to dismiss the appeal for non-prosecution rather than on merits. They also requested the matter to be remanded for reconsideration on its merits.

Contrarily, the respondents contended that there was no merit in the appeal, and the High Court’s order was justified due to the consistent failure of the appellants to appear.

After hearing both sides, the Supreme Court held that the dismissal on merits contradicted the provisions of Order 41 Rule 17.

Consequently, the court allowed the appeal, setting aside the High Court’s decision and restoring the case to its previous status.