The Supreme Court in the case Benny Dsouza vs. Melwin Dsouza observed and has stated that if the appellant does not appear when the appeal is called for a hearing, then the same can be dismissed for non-prosecution and not on merits.
The said findings came by the said court were in the context of an explanation which is provided in Order XLI Rule 17 of the Civil Procedure Code, 1908. Thus, the said order entitles the Court to dismiss an appeal if, on the day fixed for hearing, the appellant does not appear.
The court in the case stated that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.
The bench comprising of Justice BV Nagarathna and Justice Ujjal Bhuyan in the case observed and has opined that the explanation categorically states that if the appellant does not appear when the appeal is called for hearing, it can only be dismissed for non-prosecution and not on the merits.
The said case resolves around a property dispute between the present appellants and the respondents.
In the present case, the suit was moved by the appellants, wherein it is claimed that the permanent injunction against the respondents.
Therefore, the same was dismissed by the trial court and the appellant moved the Karnataka High Court in a second appeal.
The Junior of the arguing Senior Counsel apprised the Court that the cousin brother of the Senior Counsel had passed away and there was no such representation on behalf of the appellants.
The High Court in the case observed and has dismissed the appeal on merits while finding that there were no such grounds to entertain the same. Thus, the appellant approached the Supreme Court, aggrieved with the same.
On the other hand, it has been contended by the High Court that it could have dismissed the appeal for non-prosecution but not on merits.
Further, it has been pleaded before the court that the matter could be remanded for reconsideration by the High Court on merits.
It has also been contended by the opposite party before the court that there was no such merit in the appeal, and that the impugned order was passed since there was constant failure on the part of appellants to appear before the High Court.
The court while considering the facts and circumstances of the case stated that the aforesaid observations and held that the dismissal of the appeal on merits was contrary to the Order XLI Rule 17. Accordingly, the court allowed the appeal and has restored the same with the High Court.