It is clear from the above that whereas appeal can be heard on merits if the respondent does not appear, in case the appellant fails to appear it is to be dismissed in default. Explanation makes it clear that the court is not empowered to dismiss the appeal on the merits of the case. As different consequences are provided, in case the appellant does not appear, in contradistinction to a situation where the respondent fails to appear, as a fortiori, Rule 19 and Rule 21 are also differently worded. Rule 19 deals with re-admission of appeal "dismissed for default", where the appellant does not appear at the time of hearing, Rule 21 talks of "re- hearing of the appeal" when the matter is heard in the absence of the respondent and ex-parte decree made.
In Abdur Rahman case (supra), this Court made it clear that because of non-appearance of the appellants before the High Court, High Court could not have gone into the merits of the case in view of specific course of action that could be chartered (viz. dismissal of the appeal in default above) continued in the explanation to Order XLI Rule 17, CPC and by deciding the appeal of the appellants on merits, in his absence. It was held that the High Court had transgressed its limits in taking into account all the relevant aspects of the matter and dismissing the said appeal on merits, holding that there was no ground to interfere with the decision of the trial court.
Supreme Court of India
Harbans Pershad Jaiswal (D) by LRS. Vs. Urmila Devi Jaiswal (D) by LRS.
[Civil Appeal No.4656/2014 arising out of S.L.P. (Civil) No.5875/2007]
