MUHAMMAD AFZAL LONE, J.---This petition under Article 185(2) of the Constitution arises out of a suit filed by the appellants against the respondent and Behram Khan (not party to this appeal) under the Fatal Accident Act for recovery of Rs.5,27,768.54, as damages, on account of the death of the appellants' daughter, namely, Mst. Parveen Akhtar, aged 22, in a road accident. The accident took place on 1-8-1974 on Ferozepur Road, Lahore, due to the negligence, rash and reckless driving of bus by Behram Khan, Driver, in the course of his employment under the respondent, to whom the bus belonged. The bus recklessly struck the scooter, resulting in instantaneous death of Mst.
Parveen Akhtar and injures to another daughter and son of the appellants who was driving the scooter. The respondent in the first instance contested the suit but subsequently failed to enter appearance in the Court. Consequently, on 24--2-1979, on the basis of the material on the record, the trial Court passed an ex parte decree against the respondent as well as the co-defendant Behram Khan for the entire suit amount.
2. The respondent filed an appeal in the High Court against the judgment and decree of the trial Court, which came up for hearing on 18-11-1986; the appellants entered appearance through their counsel but no one appeared on behalf of the respondent-appellant. Instead of adjourning the appeal to procure the respondent's presence or dismissing the same in default, the learned Judges heard it on merits, upheld the findings that the accident occurred as a result of rash and negligent driving of bus by Behram Khan, in which Mst. Parveen Akhtar, who was employed as Technician in a local clinic, received fatal injuries and expired.
3. Both the defendants in the suit were thus held liable to pay damages to the plaintiffs/appellants.
The High Court, however, disallowed the appellants' claim to the extent of Rs.2,53,568 and decreed the suit for Rs.1,74,200. The High Court's judgment and decree dated 18-11-1986 are under challenge in this appeal before us on the sole ground that when the respondent was absent, the High Court could proceed only under Order 41, Rule 17, C.P.C., dismiss the appeal for default in appearance or adjourn the case for respondent's appearance, but could not decide it on merits. Thus, the decision on merits, in the submission, of the learned Counsel, was wholly illegal.
4. Both the sides have been heard. If after admission of the appeal for regular hearing, on the adjourned date of hearing the appellant is absent, under Order 41, Rule 17, a discretion is conferred on the Court to dismiss the appeal. The exercise of such power under Order 41 Rule 17, C.P.C. Is not intended to be imperative but is discretionary. The dismissal for want of prosecution under this rule is not a decision on merits, and under Order 41 Rule 19 on application of the appellant the Court can re-admit the appeal on such terms as to costs or otherwise as the Court thinks fit, provided the appellant shows sufficient cause for his non-appearance. On the other hand, if the appellant appears and the respondent does not appear, the appeal may be heard ex parte. If the Court does not choose to dismiss the appeal, it has to be adjourned, but this rule nowhere empowers the Court to render a decision on merits in the absence of the appellant. A decree on merits it envisaged by Order 41, Rule 30 and hearing of both the sides is the condition precedent for such a decree. The Court can pass an ex parte decree on merits in the absence of the respondent, but the decision on merits in the absence of the appellant is not permissible under C.P.C. No provision of law conferring such powers on the Court has been brought to our notice by the learned counsel for the respondent. The High Court, therefore, was not vested with the authority to pass a judgment on merits and partly accept the 3 appeal despite the default committed by the appellants in failing to appear when the appeal was called for hearing. The impugned judgment and decree, therefore, cannot be sustained.
This appeal is, therefore, accepted. The impugned judgment and decree are set aside and that of the trial Court restored, leaving the parties to bear their own costs.