Judgment:
L. Mohapatra, J.
1. This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Nuapada confirming the judgment and decree passed by the learned Sub-Judge, Nuapada in T.S. No. 53 of 1990.
2. Appellant was the defendant No. 3 in the trial court. The suit had been filed for issuance of perpetual injunction restraining defendants 1 to 3 from entering upon Schedule 'A' lands and alternatively for partition of Schedule 'B' land and for a direction to allot 'A' schedule land to the share of the plaintiff-respondent No. 1. From the order and decree passed by the trial court it appears that the original respondent No. 1 Master Domb had filed an application under Order 23, Rule 1 of the Code of Civil Procedure with a prayer to allow him to withdraw the suit against the present appellant who was defendant No. 3 in the trial Court. Said prayer was allowed and the suit was disposed of on compromise. Present appellant against whom the suit had been withdrawnfiled Title Appeal No. 24/3 of 1990-2000 in the court of the learned District Judge, Bhawanipatna against the aforesaid compromise decree. The appeal was subsequently transferred to the court of learned Additional District Judge, Nuapada. The appeal having been dismissed the present Second Appeal has been filed.
3. During the pendency of the Title Appeal plaintiff-respondent No. 1 expired and his L, Rs. were substituted. In the second appeal, learned counsel for the appellant has only raised one question of law. It is submitted by the learned counsel for the appellant that on the date of hearing of the Title Appeal before the lower appellate court neither party appeared and the learned Additional District Judge instead of following the procedure as prescribed under Order 41, Rule 17(1) of the Code of Civil Procedure disposed of the appeal on merit and therefore the judgment and decree passed by the lower appellate court is liable to be quashed. Order 41, Rule 17(1) of the Civil Procedure Code runes as follows :
'Dismissal of appeal for appellants' 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.
Explanation : Nothing in this Sub-rule shall be construed as empowering the court to dismiss the appeal on the merits.'
The aforesaid provision is very clear to the extent that where on the date fixed or any other date to which hearing of the case is to be taken up, if the appellant does not appear when the apear is called on hearing the Court may dismiss the appeal. Explanation to the said provision provides that nothing in the said rule shall be construed as empowering court to dismiss the appeal on merit.
Reliance is placed by the learned counsel for the appellant on a decision reported in 1996 (6) SCC 62 (Abdur Rahman and ors. v. Athifa Begum and ors.). In the said caseon the date of hearing the appellant did not appear and the High Court disposed of the appeal on merit. The Apex Court under such circumstances held that under Order 41, Rule 17(1) explanation High Court could not have gone into merits of the case and therefore transgressed its limits in taking into account all relevant aspects of the matter and holding that there was no available ground for interference with the decision of the trail court.
4. Keeping in mind the law as aforesaid I proceed to examine the order-sheet of the lower appellate court. From the records, it appears that the appeal was received by the learned Additional District Judge, Nuapada from the file of the District Judge, Bhawanipatna on 27.3.2000 and the case was directed to be posted on the date already fixed for hearing. On 21.4.2000 none appeared for either party and the following order was passed :
'None appeared. Though the case is posted for hearing but no steps taken either by appellant or L. Rs. of Respondents 1 & 2. Perused the appeal memorandum and the L.C.R. Heard. Call on 27.4.2000 for judgment.'
From the aforesaid order, it is very clear that on the date of hearing of the title Appeal neither party appeared and therefore only course open for the court was to dismiss the appeal in terms of order 41, Rule 17(1) of the Code of Civil Procedure and the lower appellate court could not have disposed of the appeal on merit.
It is submitted by the learned counsel for the respondents that the suit having been disposed of on the basis of the compromise and the suit having been withdrawn as against the appellant the appellant could not have got any better relief even if title appeal would have been heard on appearance of both parties. I am not called upon to examine the said question in the second appeal and I leave it open for the lower appellate court to decide. Since the judgment and decree passed by the lower appellate court is in contravention of the Order 41, Rule 17(1) of the C.PC. the same is liable to be set aside.
5. I, therefore, allow the second appeal, set aside the judgment and decree passed by the lower appellate court in Title Appeal No. 24/3 of 1990-2000 and direct the learned Additional District Judge, Nuapada to hear the appeal on merit on appearance of the both parties and dispose of the same in accordance with law. Since both the parties are appearing before this Court, they are directed to appear before the learned Additional District Judge, Nuapada on 8.1.2002 and after their appearance the learned Additional District Judge shall fix the date for hearing of the appeal and dispose of the same by end of March, 2002.
6. There shall be no order as to cost.
7. Second Appeal allowed.