GURDIAL SINGH Vs. MOHAN SINGH

JUDGEMENT

(1.) HEARD . Decree passed by the learned District Judge, Hoshiarpur on merit cannot be sustained as before him the learned counsel for the appellant had made statement that the appellant had taken the brief from him and he had no instructions to plead and if that was so, he could dismiss the appeal in default but more appropriately he should have given notice to the appellant calling upon him to engage some other counsel for arguing this appeal on his behalf.

(2.) IN Abdur Rahman v. Athifa Begum, (1996)6 Supreme Court Cases 62, the Hon'ble Supreme Court observed that "there was no appearance of the appellant before the High Court. High Court could not go into the merits of the case. High Court having decided the appeal on merits has transgressed the limit." 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. Orders 41 Rule 17(1) CPC lays down as under :