(1.) This revision petition has been filed by Sainsi against the order of the Additional District Judge, Karnal, dated April 18, 1978, dismissing the appeal in default, under Order 41, Rule 17 of the Code of Civil Procedure (hereinafter referred to as the Code) on the ground that the petitioner could not conduct his appeal before him.
(2.) Briefly the facts are that Sainsi and two other appellants filed an appeal against the judgment and decree of the trial Court to the Court of Additional District Judge, Karnal. April 18, 1978, was fixed by him for hearing of the appeal. Sainsi one of the appellants, went to the Court and made a request to the learned Additional District Judge that the case be adjourned to some other date as his counsel was ill. The learned Additional District Judge dismissed the appeal under Order 41, Rule 17 of the Code on the ground that no medical certificate or application had been filed showing that he was ill and unable to conduct the appeal. Sainsi has come up in revision against the order of the Additional District Judge, Karnal, to this Court.
(3.) The only contention of the learned counsel for the petitioner is that if one of the appellants was present in the appellate Court, the appeal could not be dismissed for non-prosecution under Order 41, Rule 17 of the Code. I find force in the contention of the learned counsel. Rule 17 says that 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 make an order that the appeal be dismissed. The language of the rule clearly shows that if the appellant is present in the Court the appeal cannot be dismissed on the ground that he is unable to conduct the case. In that eventuality, the only course that seems to be open to the Court is to decide the appeal on merit. In the above view, I am fortified by the observations of a Division Bench of this Court in Sm. Ruprani Devi v. Christopher Southern Lewis and others, 1949 AIR(P&H) 86, wherein it was observed that the words of Rule 17 are very clear, and if a party is present in Court when his case is called, even though he be unable to conduct it as he should, Rule 17 of Order 41 can have no application. The impugned order, in my view, is liable to be set aside.