GHULAM QADIR Vs. SIKANDER

JUDGEMENT

(1.) This appeal raises an important question of interpretation of Order 41, Rule 17 (1), C. P. C. which arises in the following circumstances :

(2.) The appellants filed an appeal against a judgment and decree of District Judge, Bhadarwah, which in their absence, as well as in the absence of their counsel, was dismissed by a learned Single Judge of this Court, on merits, on 20-12-1974. Application under Order 41, Rule 19 for its re-admission was also dismissed by him on 14-3-1975 by a brief order which runs as under :-

(3.) Mr. Parihar's contention in the appeal is twofold. According to him, the learned Single Judge had no jurisdiction to decide the appeal on merits in the absence of the appellants, or their counsel, as such, order dated 20-12-1974, even if it purports to dispose of the appeal on merits, shall still be construed to have been passed under Rule 17 (1) for default, and not on merits, entitling the appellants to make an application under Rule 19 for re-admission of the appeal. His next contention is that an application under Rule 19 could not have been dismissed in lirnine, and the learned single Judge was bound to afford the appellants an opportunity of showing sufficient cause for their absence on 2012-1974, when he proceeded to dismiss their appeal on merits. Mr. Thakur's contention on the other hand is that the learned single Judge had ample power to dispose of the appeal on merits, even in the absence of the appellants, or their counsel, under the provisions of Rule 17 (1), and no application under Rule 19 was competent, for the Rule was attracted to only those cases where an appeal was dismissed for default of appearance of the appellants under Rule 17 (1). There is, however, no dispute on the point that in case an appellate Court has power to dismiss an appeal on merits in the absence of the appellant, then an application under Rule 19 for its re-admission does not lie. The fate of the appeal, therefore, turns upon the interpretation of Rule 17 (1). Rule 17 reads as below :