1. ' SYED HAIDER ALI PIRZADA, J.---The appellant in H.CA. No, 129 of 1986 has made this application under Order XLI, Rule 19 of the Code of Civil Procedure for restoring the appeal to file. It was dismissed by a Division Bench of this Court comprising Mamoon Kazi and Ahmad Yar Khan, JJ. On merits on 30-3-1992. The relevant portion is reproduced herein below which reads: "Today when the matter was called in the Court only Mr.M.Ibrahim Memon has appeared on behalf of respondents Nos.1 to 6. The case proceeded against respondents Nos.7 and 8 ex parte. It is pertinent to point out that we have had the advantage of hearing only Mr. Ibrahim Memon as none has appeared on behalf of the appellant. We have been waiting for Mr. Abul Khair Ansari and MrAbdul Majeed Khan who have filed Vakalatnama on behalf of the appellant but none has appeared and we are not inclined to adjourn the appeal on account of the absence of the learned counsel since the appeal has been pending before this Court since 1986."
2. ' The application for restoration of the appeal to file was made. It stated the following grounds to support the prayer for restoration:-- "(1) That on 30-3-1992 the above noted appeal was fixed for hearing in this Hon'ble Court.
(2) That the counsel for the appellant was busy in Supreme Court of Pakistan in Civil Appeal No, 54- K of 1989 fixed on 30th March 1992. Photostat copy of the said notice is attached herewith.
(3) That the appellant informed the Reader of this Hon'ble Court to keep it aside as he is busy in the Supreme Court of Pakistan in the aforesaid case.
(4) That as soon as I finished my case from the Supreme Court of Pakistan, I came to this Hon'ble Court but I was informed that the appeal was dismissed in default by the Hon'ble Court. I made oral statement before the learned Judges of the above facts on the same date before the break.
(5) That the absence on 30-3-1992 when the appellant was called for hearing was due to sufficient cause/reason as stated above.
(6) That the huge amount of property is involved in the case.
(7) That law favours adjudication of dispute in favour of the appellant, in view of the decision of the Supreme Court of Pakistan reported in PLD 1982 SC page 367."
3. ' Affidavit of the Advocate in support of the application is filed.
4. ' Mr. Abul Khair's contention is that the Division Bench had no jurisdiction to decide the appeal on merits in the absence of the appellant or his counsel, as such order dated 30-3-1992, 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 appellant to make an application under Rule 19 for re-admission of the appeal. In support of his contention, reliance is placed on a case Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan reported in PLD 1966 SC at page 467.
5. ' On the other hand, Mr.M.Lbrahim Memon, learned counsel appearing for respondents 1 to 6 submitted that the learned Judges of the Division Bench had ample power to dispose of the appeal on merits even in the absence of the appellant or his counsel under the provisions of Rule 17 (1) and no Application under Rule 19 was competent, for the Rule was attracted to apply those cases where an appeal was dismissed for default of appearance of the appellant under Rule 17(1). In support of his contention, reliance is placed on a decision reported as Gajrani and others v. Ram Rati and others (AIR 1965 Allahabad 547).
6. ' We have heard the learned counsel appearing for both the parties and have perused the order dated 30-3-1992.
7. ' There were six grounds which were stated in the application for readmission of the appeal. We have summarized all the grounds which the application stated in order to show that the restoration of the appeal which was 5-1/2 years old when it was dismissed for default. We have taken into consideration the respective contentions of the learned counsel for both the sides and also considered the cases cited at the bar. We may point out that the learned counsel for the parties have not assisted us except citing PLD 1966 SC 467 and AIR 1965 Allahabad 547.
8. ' The fate of the appeal, therefore, turns upon the interpretation of Rule 17(1). Rule 17 reads as under:-- "17. Dismissal of appeal for appellant's default.--(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(2) Hearing appeal ex parte.--Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."
9. ' Order XLI, Rule 11 of the Code provides that the Appellate Court may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. When the Appellate Court does not dismiss an appeal under Rule 11, then it has to fix a day for its hearing under rule 12(1). The power to adjourn the hearing is not expressly provided for in any rule but it has to be culled out from Rule 16 which says:- "16., Right to begin.--(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.,
(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply."
10. ' Rule 30 of Order XLI prescribes as to when and where the judgment in appeal is to be pronouned.
11. The Appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, is to pronounce judgment thereafter. What are to be the contents of the judgment is provided for in Rule 31. There is, therefore, no difficulty where parties or their pleaders are present and are heard.
12. ' Order XLI, Rule 17 in the present Code of Civil Procedure corresponds to section 556 of the Old Code where the expresssion "shall be dismissed" has been used.
13. ' There, is a cleavage in judicial opinion over the ambit and scope of Rule 17(1). One view which is near unanimous is that the Court has only two options under sub-rule (1) i,e, either to adjourn the appeal or to dismiss it for default of appellant's appearance. It has no third option of disposing of the same on merits which is only possible after hearing both the parties as contemplated by Rule 30, or at least the appellant as provided under Rule 16. According to this view, a subsequent change in the language of sub-rule (1) of Rule 17 by substitution of words "the Court may make an order that the appeal be dismissed" for the words "the appeal shall be dismissed for default", which occurred in section 556 of the Code of Civil Procedure of 1882, did not make any difference. In our opinion, the change of the language only means that the Appellate Court has jurisdiction either to dismiss the appeal for default, or to adjourn it to some other date. We think that the language of Order XLI, Rule 17 does not warrant the Appellate Court to hear the appeal in the absence of the appellant and to decide the appeal on merits.
14. ' It was held as early as 1907 by the Full Bench of the Calcutta High Court in Satish Chandra Mukerjee v. Apara Prasad Mukerjee ILR 34 Cal. 403 that an application by a counsel who is instructed only to apply for an adjournment, which is refused, is not an appearance within the meaning of the Code of Civil Procedure and that when in such circumstances an appeal is dismissed, the dismissal is one for default under section 556 of the Code, entitling the appellant to apply for re-admission under section 558 of the Code.
15. ' The decisions wherein this view has been taken, are as follows:-- ' The first in the chain is the case Musaliarakath Muhammad alias Rava v. Manavikrama the Zamorin Rajah Avergal and others (1923 Madras 13) wherein the view taken was as under:-- "It is quite possible to give effect to the change from 'shall' to 'may' without going to this length.
16. Under the old Code the Court apparently had no power to adjourn the appeal in order to give the absent appellant a further opportunity to put in an appearance. Under the present Code that course is ordinarily open to it and I can see no reason why this latitude should not have been the object of the change."
17. ' It was further observed as under:-- "The order of the Subordinate Judge is on the face of it an order dictated by a consideration of the merits of the case and as we hold, an illegal order. Such consideration of the merits would be irrelevant to an order under Order XLI, Rule 17. We therefore set aside the order of the Subordinate Judge, dated 10th February, 1920 as ultra vires and direct him to restore the appeal to file and dispose of it according to law."
18. ' The next case in this chain is Maung Than Ge v. Maung Po Thin and another (1925 Rangoon 96) where it has held at page 98 as under:-- "It is at least open to doubt whether an order under Rule 17 of Order XLI can be said conclusively to determine the rights of the parties with regard to the matter in controversy as regards the Court passing the order, because it is always open to the appellant to make further application to the same Court under the provisions of Rs,19. And the Legislature has now definitely excluded an order of dismissal for default from the definition of a decree. I am, therefore, of opinion that the order passed by the District Court in this case was not a decree within the meaning of section 2, clause
(2) of the Code of Civil Procedure, and that no appeal from it to this Court lies. The appellant had his remedy by way of application to the Divisional Court to have his appeal re-opened."
19. ' The next case in the arena is Taher Sheikh Chowkidaar and others v. Otaruddi Howladar and others (AIR 1929 Calcutta 475) where a Division Bench of Calcutta High Court held at page 476 as under:- "Under Order XLI, Rule 17, if the appellant does not appear and the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The previous Code contained the words 'the appeal shall be dismissed.'
20. ' This portion of the rule has been altered in the new Code in order to give jurisdiction to the appellate Court to pass such order as it thinks proper in the circumstances of the case other than dismissing the appeal and further to make the order of dismissal for default not open to appeal. By the words 'the Court may make an order that the appeal be dismissed' it meant that the Court may dismiss the appeal or may adjourn it to some other date or pass other order, but it certainly does not authorize the Court to consider an appeal in the absence of the appellant and decide it on merits. It was not contemplated by the alteration in the rule to invest the Court with power to decide an appeal on the merits in the absence of the appellant and the reason is this. This appeal was not argued by appellant-plaintiff 2 and, therefore, there was no reply to the appellant's arguments by the respondent, that is to say, defendant No,1. The law contemplates that the appellate Court must hear both parties to the appeal and then decide it according to its judgment.
21. That is the procedure laid down in Order XLI, Rule 30, Civil Procedure Code. The procedure followed by the Court is wrong and the decree passed by it in favour of plaintiff 2 must, accordingly, be set aside."
22. ' The other case is Basudev v. Bideshi and another (AIR 1929 Rangoon 11(2)). In this case Baguley, J.
23. Laid down as under:-- "My own view is that Order 41, Rule 17 is intended to give the Court power to adjourn a case if it thinks fit. It seems distinctly unfair that for default the appellate Court may pass an order without hearing the appellant's Advocate or without hearing the appellant, which will entirely preclude him from ever afterwards questioning the findings of fact. This being the case and following the Madras ruling, I set aside the order of the learned Additional District Judge as ultra vires and I direct him to restore the appeal to the file and dispose of it according to law."
24. ' In Jigendra Chandra Pal v. Radha Ballav Pal (AIR 1953 Assam 191) a learned Single Judge of Assam High Court held as follows:-- "Under Order 41, Rule 17, C.P.C., the Court could dismiss the appeal by reason of the absence of the appellant, though it was not obligatory on it to dismiss it. The only other course open to it was to adjourn the appeal. It had no power to proceed to decide the appeal on the merits in the absence of the appellant or his counsel."
25. ' In Kundha Singh v. The Punjab State and others (AIR 1962 Punjab 82) a learned Single Judge of Punjab High Court held that "under the provisions of Order 41, Rule 17, a Judge is not entitled to dismiss an appeal on merits if the appellant is not present on the date of hearing. An appeal can be dismissed on merits only under Rule 30 of Order 41, after hearing both the parties."
26. ' Another case in the series is Mosafir Mahton v. Mst. Bachani reported in AIR 1963 Patna at page 1 in which a Division Bench of Patna High Court held as follows:-- "We think that the language of Order XLI, Rule 17 does not warrant the appellate Court to hear the appeal in the absence of the appellant and to decide the appeal on merits. The reason is that the law contemplates that for a decision of appeal on merits the appellate Court must hear both parties to the appeal and then give a decision."
27. ' In M/s. Chandra Stores, Ajmer v. Cloth Merchants Association, Ajmer (AIR 1964 Rajasthan 197), a Division Bench of Rajasthan High Court held at page 201 as under:-- "(15) None of these cases, in our opinion, adversely affects the conclusion to which we came above, namely, that the order passed by us on the 20th September, 1963, virtually amounted to an order dismissing the appeal for default, and, therefore, it fell within the four walls of 0.41 R.17, C.P.C., and it must inevitably follow therefrom that an application for setting aside an order under Order 41, Rule 19 is perfectly competent."
28. ' A Division Bench of Patna High Court in the case of Deo Dutta Singh and others v. Ram Naresh Singh and others (AIR 1973 Patna 166) held that "when the appellant does not appear when the appeal is called on for hearing, the Court may either adjourn it or dismiss it for defualt but it has no power to dismiss the appeal on merits, so that the appellant may get an opportunity to establish sufficient cause, if any, under Order 41, Rule 19 of the Code".
29. ' A contrary view has, however, been taken by the Allahabad High Court according to which the Legislature by substituting the aforesaid words in sub-rule (1) of Rule 17 for the words which originally existed in section 556 of the repealed Code of 1882, aimed at making the sub-rule permissible in character and the Court had not only two but three options open to it, i,e, either to adjourn the appeal or to dismiss it for default in appearance of the appellant or to dispose it of on merits.
30. ' In Allahabad High Court, the view taken has not been consistent. A Bench of the Allahabad High Court in Nasir Khan v. Itwari and others (AIR 1924 Allahabad 144) following the Madras case reported as Musaliarakath Muhamad alias Rava v. Manavikrama the Zamorin and others (AIR 1923 Madras 13) fell in line with the other High Courts. But a learned Single Judge in Syed Muhammad Hussain v. Mt. Chandro and others (AIR 1937 Allahabad 284) expressed the view that when the appellant's counsel is not prepared to argue the appeal after his prayer for adjournment has been rejected, then even if the appeal is dismissed for defualt, it has the force of a decree; Court should in such cases proceed in the manner laid down by Order 41, Rules 30 and 31 of the Code. But a Bench of the Allahabad High Court did not approve this view in Mathura Das v. Naraindas (AIR 1940 Allahabad 248). The opinion expressed by Bennt, J. While delivering the Judgment on behalf of the Bench is that in a case where the appellant or his pleader is not prepared to address the Court, the Court may pass an order of dismissal for default but such an order does not necessarily mean that the appeal is dismissed for default of appearing; in such circumstances the order means that the appeal is dismissed for default of proof.
31. ' In Gajrani and others v. Ram Rati and others (AIR 1965 Allahabad 547), a Division Bench, after dealing with the relevant provisions of the Code and referring exhaustively to the case, held that Order 41, Rule 17 permits the appellate Court to follow the procedure of Rule 30 and dismiss the appeal on merits even though the appellant is absent, provided he has had reasonable notice of the date of hearing.
32. ' The latest decision of the Allahabad High Court on the point under consideration is a Full Bench decision in the case of Babu Ram v. Bhagwan Din and another (AIR 1966 Allahabad 1) where after dealing with the relevant provisions of the Code and referring exhaustively to the case, the Court held at page 11 as follows:-- "(48) The dismissal of an appeal on merits in the absence of the appellant and his pleader being discretionary with the Court it must naturally be subject to all those considerations to which a judicial discretion is subject. But the most relevant of such considerations in this context is that the more drastic a discretionary power and the more far-reaching its result, the more reluctant the Court should be to exercise it, particularly when the person who may be adversely affected by the use of the power has not been actually heard even though it be that he has been given the opportunity of being heard. The hardship which the dismissal on merits of the appeal of an absent appellant may entail and the serious consequences which may ensue therefrom have been exhaustively set forth in the passages quoted above from the judgments of Ayling, J. And Odger, J.
33. In the case of AIR 1923 Madras 13 and it is, therefore, unncessary to detail them here. Those considerations which could not, in my respectful opinion, affect the construction of the relevant provisions of the Code in view of the clear language of the provisions are of prime importance in arriving at an answer to the first question under reference.
34. ' To them I may only add this, that the appellate Court, in the absence of the appellant, has not the means of knowing the reason of his absence and it is only very rarely that it can be in a position to be firmly convinced that there is no excuse for the appellant's absence and he is deliberately avoiding the hearing of the appeal. The material on which the Court may form an opinion in that matter against the appellant may be untrue, misleading or insufficient and the circumstances appearing against him may be inconclusive or capable of being explained by the appellant or of being neutralised by other circumstances which the Court does not know and has not the means of knowing at that time. Also, the appeal may have merits which, on account of the absence of the appellant and his counsel, may not be brought to the notice of the Court or the Court may fail to discover. Having regard, therefore, to the serious consequences, that may follow and to the dangers of error, the Court should not ordinarily dismiss the appeal on merits in the absence of the appellant and his counsel, but should leave it open to the appellant to apply under Order XLI, Rule 19 and have the dismissal set aside by satisfying the Court that there was sufficient reason for his absence. It is, in my view, only in exceptional circumstances that the Court should dismiss the appeal oh merits in the absence of the appellant and his counsel. What those exceptional circumstances are cannot be rigidly formulated or exhaustively enumerated, and naturally the question under reference does not require it to be done. Of course, the allowing of the appeal does not result in the serious consequences mentioned in Musaliarakath Muhammad's case AIR 1923 Mad. 13, and is not attended by the dangers of error to which I have drawn attention."
35. ' Again in para. 50 of the report, it was held asunder:-- "In the absence of the appellant and his counsel the appellate Court should ordinarily dismiss the appeal for default, and it is only in exceptional circumstances that it should decide the appeal on merits. The appellate Court has, however, jurisdiction, even in the absence of the appellant and his counsel, to dispose of the appeal on merits."
36. ' In Sukhpal Singh v. Kalyan Singh (AIR 1963 S.C. 146) the contention before the Supreme Court of India was whether the appellate Court is bound to decide an appeal on merits on the basis of the material on record when the appellant appears at the hearing but does not address the Court. This contention was repelled and it was held that the appellate Court was not bound to decide an appeal on merits when the appellant appeared at the hearing but did not address the Court and that it was open to the Court to dismiss the appeal for default. The appellant's appeal came for hearing before the High Court on January 4, 1955. Learned counsel for the appellant stated that he had no instructions to represent the appellant. The appellant did not deny this fact. His application for adjourment was rejected. The appellant was not prepared to address the Court. The High Court, therefore, dismissed the appeal for default with costs and in doing so relied on AIR 1940 Allahabab 248 (supra).
37. ' In Yusuf v. Mst.Rabia (1985 SCM R 1066), the argument of the learned counsel was as follows:-- If section 21 is a complete Code in itself regulating the procedure for the hearing and disposal of appeals under the said Ordinance and, therefore, the appellate authority was under an obligation of law to peruse the record of the case and go into the merits of the same before disposing of the appeal, even though the appellant and his counsel were not present to prosecute the same."
38. ' It was held at page 1068 in para. 3 as under:-- "Additionally to our mind the appellate authority is not required to consider the merits of an appeal when the appellant himself does not prosecute the appeal. From the language of the subsection, it appears clear that the appellate authority is required to go into the merits of the case when at the final hearing the parties appear before it and are given the opportunity of being heard. The Code of Civil Procedure authorises the Court under Order XLI, rule 17, to dismiss the appeal forthwith in case the appellant does not appear when the appeal is called on for hearing. This is a salutary provision of law and obviates unnecessary wastage of valuable time at the disposal of the Court to be expended on matters in which parties are genuinely interested in prosecuting their cases. Also this tends to avoid duplication of work, in that if a party who is prevented for a sufficient cause from appearing in the Court and his appeal is disposed of in his absence, he may subsequently appear and show sufficient case in order to get a proper hearing in support of his case. If the Court is required, notwithstanding the absence of the parties, to dispose of the case on merits and subsequently re-admit the appeal apparently the Court's time would be unnecessarily wasted."
39. ' Again at page 1069 in para. 4 it was held as under:-- "It may be mentioned herein that subsection (3) of section 21 is in substance on par with rule 30 of Order XLI, C.P.C., and as already mentioned, if the argument of the learned counsel is taken to its logical conclusion, it would cut at the very root of his case. His submission comes to this, that the language of section 21(3) does not in terms authorise the Court to dimiss the appeal in default of appearance of the appellant, so as to be re-admitted for hearing but makes it obligatory upon it to dispose of the appeal on merits. It can be said on good authority and on reasonable construction of the language of the provisions that a Court, in a case where the appellant or his counsel refuses to advance any argument in support of the appeal, the Court can dismiss the appeal for non- prosecution. In such a case the decision is on merits under Order XLI, Rule 30, C.P.C. And not under Order XLI, Rule 17, C.P.C. In which case the Court can dismiss the appeal for non-appearance.
40. Therefore, if the Court had no power to dismiss the appeal for non-appearance and due to the absence of the appellant, no argument was advanced in support of the appeal, the Court would have no option but to dismiss the appeal on the ground that no point was raised for consideration of the Court and consequently no reference to the proceedings of the Courts below would be required. See Thakur Sukhpal Singh v. Thakur Kaylan Singh AIR 1963 S.C.
146. There is thus no substance in the first contention raised by the learned counsel."
41. In view of the preponderance of authorities on the question, with which we are in respectful agreement, we are of the view that the appellate Court would have no jurisdiction to dismiss the appeal on merits in the absence of the appellant or his counsel. Such a course was bound to cause hardship to the appellant because he would have no remedy to have the order set aside by the Court that made it in view of the provisions of Rule 19 of the said Order. The position where either the appellant or his counsel appeared but either refused to make a submission or was unable to do so, would, however, be different, as was pointed out both in the decisions of the Patna High Court and the judgment of the Supreme Court referred to above.
42. So far as the question as to the maintainability of the application either for review or under Order XLI, Rule 19 is concerned, it appears to us that once it is held, as we have held above, that there was no jurisidiction to dimiss the appeal on merits in the absence of the appellant and his counsel, the judgment dismissing the appeal on merits would tantamount in law to a judgment dismissing the appeal in default of appearance, and that being so, there would be ample power in the Court under the provisions of Order XLI, Rule 19 to set aside such a judgment on sufficient cause being shown.
43. ' Mr. Abul Khair vehemently contended that he was before the above Hon'ble Supreme Court in 54- K of 1989 on 30-3-1992. This fact was not denied by the learned counsel appearing for the respondents 1 to 6.
44. It was not disputed that the circumstances set out above would constitute sufficient ground for the non-appearance of the appellant when the appeal was called for hearing.
45. ' In the result, the application succeeds. The judgment of this Court made on March 30, 1992 in H.CA.
46. No, 126 of 1986 is set aside and the appeal of the appellant is restored to be dealt with according to law. The applications are accordingly disposed of. However, there would be no order as to costs in the present application. Order dated 7-5-1991 directing the parties to maintain status quo until the disposal of the case is restored.