The Supreme Court, on Friday, held that a second appeal cannot be dismissed on merits by the High Court if the appellant is not present on the date of hearing.
In Prabodh Ch. Das vs. Mahamaya Das, the bench of Justice Abdul Nazeer and Justice Sanjiv Khanna challenged the High Court for the dismissal of an appeal on merits. The court referred to the provisions of Order XLI Rule 17(1) of the Code of Civil Procedure, 1908 which deals with the dismissal of an appeal for the appellant’s default. It also cited the judgments of Ghanshyam Dass Gupta v. Makhan Lal and Abdur Rahman v. Athifa Begum, wherein it was held that High Court cannot go into the merits of the case when the appellant has not appeared for the hearing.
“If the appellant does not appear, the Court may if it deems fit dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits,” said the bench.
