BABU RAM Vs. BHAGWAN DIN

JUDGEMENT

(1.) THE following question has been referred to this Full Bench for its opinion: "Whether, in the absence of an appellant or his counsel, an appellate Court should dismiss the appeal in default or decide the appeal on merits? Whether under such circumstances the appellate Court has jurisdiction to dispose of the appeal on merits?"

(2.) ON au application made under Section 13 of the Arbitration Act the Munsif of Orai passed a decree in terms of an award made by an arbitrator. The defendant preferred an appeal against the decree to the Civil Judge of Orai. When, the appeal came up for hearing neither the appellant nor his counsel appeared and the learned Civil Judge dismissed the appeal by passing an order in the following terms: "The appellant is absent. His counsel does not turn up to argue the appeal. The judgment appealed against is manifestly correct. Therefore, it is hereby ordered that the appeal fails and it is hereby dismissed with costs to the plaintiff-respondent."

(3.) THE provision which, in express terms, provides for the dismissal of an appeal in the event of the appellant's failure to appear at the hearing of his appeal is Order XLI, Rule 17, C. P. C., and if runs as follows:--"Dismissal of appeal for appellant's default: 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 mate an order that the appeal be dismissed. Hearing appeal ex parte. 2. Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."