In Absence Of Counsel, First Appellate Court Should Not Consider Appeal On Merits; But Can Dismiss It For Non-Prosecution: Karnataka HC

The present appeal was filed by the defendants, who were dissatisfied with the judgment confirming the decision by the trial Court. The trial court had decreed the suit for partition and separate possession of the suit properties in favor of the plaintiff, which was contested by the defendants.

After the trial, the trial court decreed the suit in favor of the plaintiff, declaring their entitlement to half share in the suit properties. Subsequently, the defendants filed an appeal before the First Appellate Court, which was dismissed, leading to the present appeal.

A Bench of Justice G Basavaraja held, “It is well-settled law, in view of the provisions of Order XLI Rule 17 of Code Of Civil Procedure 1908, that when the counsel appearing for the appellant or the appellants are not present, and the counsel for the respondent is present, the only course open to the First Appellate Court is to dismiss the appeal for non-prosecution. The appellate Court should not consider the appeal on merits after hearing the counsel for the respondent/s, as contemplated under Order XLI Rule 17(1) of CPC.”

Advocate Chaitanyakumar C.M. appeared for the Petitioners and Advocate Mahadev S. Patil appeared for the Respondent.

The Court found that the First Appellate Court had considered the appeal on merits despite the absence of arguments from the appellant's counsel, which is contrary to the provisions of Order XLI Rule 17 of the Code Of Civil Procedure 1908. The Court added, “In the present case, the First Appellate Court at paragraph 18 of the judgment noted that, despite providing ample opportunities, the counsel for the appellants did not present any arguments. Consequently, the court considered the arguments on behalf of the appellants as NIL. Furthermore, in paragraph 19, it was observed that the counsel for the respondent had presented arguments and subsequently dismissed the appeal. This order has been made clearly in contravention mandatory provisions under of Rule 17(1) of Order XLI of the Code Of Civil Procedure 1908, which runs counter to the aforementioned decisions.”

The Court relied on legal precedents and the Explanation provided under Order XLI Rule 17 to support its decision.

Therefore, the Court allowed the appeal and remanded the case to give an opportunity to the appellant/defendants to present their arguments.

The judgment and decree of the First Appellate Court were set aside, and the appeal was restored to its file.

Cause Title: Dhanayya & Ors. v. Chandrashekhar, [2024:KHC-K:1789]

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