Whether application for re-admission of arbitration appeal can be made if it was dismissed due to absence of counsel of both parties?

In such situation, provisions of Order 41 Rule 17 of the Civil Procedure Code, 1908 got attracted and, therefore, the High Court should have taken recourse to the powers under Order 41 Rule 17 for passing appropriate orders as contemplated in Rule 17. Indeed the explanation appended to Rule 17 in clear terms provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on merits.

18) In any event, the dismissal of appeal being essentially under Order 41 Rule 17, the appellant herein should have taken recourse to the remedy available under Order 41 Rule 19 by filing application to the High Court praying therein for readmission of their appeal by making out the sufficient cause for their non-appearance on the date when the appeal was listed for hearing instead of filing this appeal against the impugned order before this Court.

Reportable

Supreme Court - Daily Orders

Navniraman Development ... vs Divisional Commissioner And ... on 5 July, 2017

Citation:2018(2) MHLJ 17

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Whether appellate court can decide appeal on merit if both parties are absent?

We find from the record that the High Court decided the appeal in the absence of both parties. In other words, when  the appeal was called on for hearing, neither the counsel for the appellant nor the counsel for the respondent was present.

17) In such situation, provisions of Order 41 Rule 17 of the Civil Procedure Code, 1908 got attracted and, therefore, the High Court should have taken recourse to the powers under Order 41 Rule 17 for passing appropriate orders as contemplated in Rule 17. Indeed the explanation appended to Rule 17 in clear terms provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on merits.

18) In any event, the dismissal of appeal being essentially under Order 41 Rule 17, the appellant herein should have taken recourse to the remedy available under Order 41 Rule 19 by filing application to the High Court praying therein for readmission of their appeal by making out the sufficient cause for their non-appearance on the date when the appeal was listed for hearing instead of filing this appeal against the impugned order before this Court.

Reportable

Supreme Court - Daily Orders

Navniraman Development ... vs Divisional Commissioner And ... on 5 July, 2017

Citation:(2017)8 SCC 603

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