Supreme Court of India
ABDUR RAHMAN & ORSversusATHIFA BEGUM AND ORS .
- Citation
- 1996 INSC 973
- Decided
- Disposal
- Appeal(s) allowed
Holding
A dismissal of an appeal under Order 41 Rule 17 CPC must be limited to procedural default and cannot involve consideration of the merits of the case.
Summary
Abdur Rahman & Ors appealed to the Supreme Court against a Karnataka High Court order that dismissed their appeal under Order 41 Rule 17 of the CPC because their counsel was absent. While dismissing the appeal, the High Court also examined the merits of the case and concluded that there was no ground for interfering with the trial court's decision. The Supreme Court held that a dismissal under Order 41 Rule 17 is a purely procedural act and the court cannot adjudicate the merits of the appeal. Consequently, the High Court had transgressed the statutory limit. The Supreme Court allowed the appeal, set aside the High Court’s order, and remitted the matter back to the High Court for fresh disposal on its merits.
Issues considered
- Whether a court may consider the merits of an appeal while dismissing it under Order 41 Rule 17 of the Code of Civil Procedure, 1908 in the absence of the appellant's counsel.
Legislation cited
- Code of Civil Procedure, 1908 — s. Explanation to Order 41 Rule 17(1), Order 41 Rule 17
Subjects
- Order 41 Rule 17
- appeal dismissed in default
- merits of appeal
- procedural law
- Civil Procedure Code
- Supreme Court of India
- Karnataka High Court
Judgment
ABDUR RAHMAN & ORS A
v.
ATHIFA BEGUM AND ORS .
. AUGUST 30, 1996
(M.M. PUNCHHI AND K.T. THOMAS, JJ.] B
Code of Civil Procedure, 1908 :
Order 41 Rule 17 CPC-Appeal-Appellant's counsel absent-High
Cowt adverted to merits of the case-Recorded that all relevant aspects of the C
matter taken into account and 110 ground available for inteiference with the
decision of the Trial Court-On appeal, held : High Court ought not have
dismissed the appeal on merit~lt has transgressed the limit and hence its
order set aside-Matter remitted back to its file for fresh disposal in accord-
ance with law.
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11460 of
1996.
From the Judgment and Order dated 26.3.95 of the Karnataka High
Court in F.A.R.F.A. No. 476 of 1992.
E
R.S. Massey Verma and Shakil Ahmed Syed for the Appellants.
S.S. Naganand and R.P. Wadhwani for the Respondents.
The following Order of the Court was delivered :
F
Leave granted.
The qualified notice issued to the respondents indicated that this
1 Court proposed to grant leave against the impugned judgment and order
of the High Court and on allowing the appeal, was expecting to remit the
matter back to the file of the High Court for disposal of the matter on its G
merits. The respondents' learned counsel has been confronted with the
proposition that though the High Court could have dismissed the appeal
in default in the absence of the appellants' counsel, it could . not have
adverted to the merits of the case. Here, the High Court has recorded that
all relevant aspects of the matter have been taken into account in order to H
391
392 SUPREME COURT REPORTS (1996) SUPP. 5S.C.R.
A hold that there was no available ground for interference with the decision
of the Trial Court. This was an exercise with which the High Court should
have been well-advised not to indulge in at the stage or Order 41 Rule 17
CPC. The Explanation to Order 41 Rule 17(1) CPC says that nothing in
this sub-rule shall be construed as empowering the Court to dismiss the
appeal on the merits. The High Court havi_ng transgressed that limit, we
B have therefore no option but to allow the appeal, set aside the impugned
judgment and order of the High Court and put the matter back to its file
for fresh disposal in accordance with law. Ordered accordingly. No costs.
G.N. Appeal allowed.
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