AIR 2002 SUPREME COURT 1447(2) ::2002 AIR SCW 1305 ::2002 AIR Jhar HCR 515 ::2002 SCFBRC 427 ::(2002) WLC(SC)CVL 400 ::(2002) 3 MahLR 1 ::(2002) 2 CivLJ 848 ::(2002) 1 All RentCas 531 ::(2002) 2 CivilCourtC 715 ::2002 (3) SCC 609 ::(2002) 3 RecCivR 334 ::(2002) 2 Raj LW 340 ::(2002) 3 Scale 68 ::2002 All CJ 2 955 ::(2002) 2 CurCC 49 ::(2002) 2 AllMR 929 (SC) ::(2002) 2 All WC 1239 ::(2002) 2 Mad LJ 189 ::(2002) 2 JLJR 34 ::(2002) 2 JCR 30 (SC) ::(2002) 1 RenCR 431 ::(2002) 1 RentLR 634 ::(2002) 2 SCJ 536 ::(2002) 2 LandLR 449 ::(2002) 2 Supreme 505 ::(2002) 3 JT 215 (SC)

Supreme Court Of India

(From : Patna) *

Hon'ble Judge(s): S. S. M. Quadri, S. N. Variava , JJ

Civil P.C. (5 of 1908) , O.41 R.11(1)(2)— Dismissal of second appeal on merits - Legality - Counsel for appellants did not appear despite adequate opportunity - Only course open to High Court is to dismiss appeal for non-prosecution or for default - High Court, instead considered merits of case and dismissed appeal @page-SC1448on merits - Not proper - Case however, not remanded to High Court for fresh disposal as it would prolong litigation. As the counsel for the appellants did not appear even though they had adequate opportunity, the only course open to the High Court was to dismiss the appeal for non-prosecution in the absence of advocate for the appellants. The High Court ought not to have considered the merits of the case to dismiss the Second Appeal. The reason being - Sub-rule (1) of R. 11 empowers the Court to dismiss the appeal if it thinks fit so to do after hearing the appellant or his pleader. To comprehend the correct import of the phrase 'after fixing a day for hearing the appellant or his pleader and hearing him' it will be necessary to read sub-rule (2) also which says that if on the date fixed or any other day to which the hearing may be adjourned, the appellant (which means appellant or his pleader) does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. The dismissa....