# Jiya Lal & Ors v. Ayodhya & Anr

- **Citation:** (2016) 8 ILRA 887
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-08
- **Bench:** Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jiya-lal-ors-v-ayodhya-anr-44283
- **Pages:** 4

## Text

8 All. Jiya Lal & Ors. Vs Ayodhya & Anr.
887
(2016) 8 ILRA 887
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.08.2016

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.

Second Appeal No.- 77 Of 2014

Jiya Lal & Ors. ...Appellants
Versus
Ayodhya & Anr. ...Respondents

Counsel for Appellants:
Adnan Ahmad

Counsel for Respondents:
Ratnesh Chandra

Civil Procedure Code -- Order 41 Rule 17(1) -- Dismissal of Appeal for Appellant's Default --
Explanation Barring Decision on Merits in Absence of Appellant -- 1st appellate court decided appeal under
Section 96 C.P.C. on merits despite non-appearance of appellants -- Held: Explanation to Order 41 Rule 17(1)
C.P.C., inserted by Act No. 104 of 1976, makes it explicit that the appellate court cannot dismiss the appeal on
merits where appellant remains absent or unrepresented on date fixed for hearing -- Only option available is
dismissal for default/non-prosecution, not adjudication on merits -- Purpose of Explanation is to preserve
appellant's opportunity to show sufficient cause for non-appearance, which is lost if appeal is decided on
merits in his absence. (Point on substantial question of law)
Substantial Question of Law -- First Appellate Court's Error -- Held: 1st appellate court fell in error in
deciding the appeal on merits in the absence of the appellants, contrary to the mandatory bar under the
Explanation to Order 41 Rule 17(1) C.P.C. -- Judgment and decree of 1st appellate court set aside and matter
remanded for fresh decision in accordance with law -- Court clarified that it had not expressed any opinion on
the merits of the case.
Second appeal allowed

Case Law Discussed
1. Ghanshya Dass Gupta vs. Makhan Lal (2012) 8 SCC 745
2. Abdur Rahman and Others vs. Athifa Begum and Others (1996) 6 SCC 62

(Delivered by Hon'ble Ritu Raj Awasthi, J.)

1. Affidavit of service filed today is taken on record.

2. Heard learned counsel for the appellants as well as Mr.Ratnesh Chandra, learned counsel appearing
for the respondent no.1.

3. In spite of service of notice no one has put in appearance on behalf of the respondent no. 2.
888 INDIAN LAW REPORTS ALLAHABAD SERIES

4. This second appeal has been filed under Section 100 C.P.C. against the judgment and decree dated
28.11.2013 passed in Civil Appeal No. 76 of 2011; Jiya Lal & others Vs. Ayodhya & another by which the 1st
appellate court under Section 96 C.P.C. has dismissed the appeal preferred against the judgment and decree
dated 18.10.2011 passed by the Civil Judge (J.D.), South, Unnao in Civil Suit No. 77 of 2010.

5. The appeal has been admitted vide order dated 25.2.2014 on the following substantial question of
law:

(a) Whether appellate court was justified in dismissing the appeal on merits in the absence of
appellants on the face of Order 41 Rule 17(1) explanation?

The Order 41 Rule 17 C.P.C., as existing today after the amendment vide Act No. 104 of
1976 (w.e.f. 1.2.1977), 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.

(Explanation.- Nothing in this sub-rule shall be construed as empowering the Court to
dismiss the appeal on the merits.)

(2) Hearing appeal ex parte.- Where the appellant appears and the respondent does not
appear, the appeal shall be heard ex parte."

6. The learned 1st appellate court by the impugned order has decided the appeal under Section 96
C.P.C. on merits in the absence of the appellants.

7. Learned counsel for the appellants submits that in view of the explanation to Order 41, Rule 17 (1)
C.P.C., the 1st appellate court has fallen in error by deciding the appeal on merits in the absence of the
appellants. In case no one was present to press the appeal the only option left with the appellate court was to
dismiss the appeal in default instead of deciding the same on merits.

8 In support of his submissions, learned counsel for the appellants has placed reliance on the judgment
of the Apex Court in the case of Ghanshya Dass Gupta Vs. Makhan Lal; 2012 (8) SCC 745, wherein it has been
held that the Courts below cannot go into the merits of the case if there was no appearance on behalf of the
appellant. The relevant paragraphs 2, 9 & 10 in Ghanshya Dass Gupta (Supra), on reproduction read as under:

2. The question that arises for consideration in this case is whether the High Court was
justified in deciding the appeal on merits when there was no appearance on behalf of the appellant, in view of
the explanation to Order 41 Rule 17(1) of the Code of Civil Procedure. (CPC).

9. Rule 17 (1) of Order 41 deals with the dismissal of appeal for appellant?s default. The
above mentioned provision, even without explanation, if literally read, would clearly indicate that if the
8 All. Jiya Lal & Ors. Vs Ayodhya & Anr.
889
appellant does not appear when the appeal is called for hearing, the court has to dismiss the appeal. The
provision does not postulate a situation where, the appeal has to be decided on merits, because possibility of
allowing of the appeal is also there, if the appellant has a good case on merits; even if no body had appeared for
the appellant. Prior to 1976, conflicting views were expressed by different High Courts in the country as to the
purport and meaning of sub-rule (1) of Rule 17 of Order 41 CPC. Some High Courts had taken the view that it
was open to the appellate court to consider the appeal on merits, even though there was no appearance on
behalf of the appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot
decide the matter on merits, but could only dismiss the appeal for appellant?s default. Conflicting views raised
by the various High Courts gave rise to more litigation. The Legislature, therefore, in its wisdom, felt that it
should clarify the position beyond doubt. Consequently, Explanation to sub-rule (1) of Rule 17 of Order 41 CPC
was added by Act 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 of Order 41 CPC should
be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained
absent or left un-represented on the day fixed for hearing the appeal. The reason for introduction of such an
explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that
there was sufficient cause for non-appearance. Such an opportunity is lost, if the courts decide the appeal on
merits in absence of the counsel for the appellant.

10. We may, in this connection, refer to a judgment of this Court in Abdur Rahman and
Others v. Athifa Begum and Others (1996) 6 SCC 62, wherein the scope of explanation to Rule 17(1) of Order
41 CPC came up for consideration. While interpreting the said provision, this Court took the view that the High
Court could not go into the merits of the case if there was no appearance on behalf of the appellant.We also
endorse that view.

9. Mr. Ratnesh Chandra, learned counsel appearing for respondent no. 1 has very fairly agreed that
after the amendment the Court has no option but to dismiss the appeal in default i.e. for want of prosecution in
case no one has appeared on behalf of the appellants to press the appeal on merits.

10. The perusal of Order 41, Rule 17 C.P.C. clearly indicates that 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 for
hearing, the Court may make an order that the appeal be dismissed. The explanation to Order 41, Rule 17 (1)
C.P.C. provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal
on the merits. The explanation to Order 41, Rule 17 (1) C.P.C. clearly makes that the appellate Court has to
dismiss the appeal for non-prosecution and in default in case no one has appeared on behalf of the appellant to
press the appeal on merits.
11. In view of above, the second appeal is allowed.

12. The judgment and order dated 28.11.2013 passed by the Additional District Judge, Unnao in Civil
Appeal No. 76 of 2011, is hereby set aside. The matter is remanded back to the 1st appellate Court to decide the
same afresh in accordance with law expeditiously, as early as possible.

13. It is, however, made clear that this Court has not addressed itself on the merits of the case.
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890 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 890
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2016

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ A No.- 32138 Of 2007

Rajendra Prasad ...Petitioner
Versus
Narendra Mittal & Ors. ...Respondents

Counsel for Petitioner:
Ajit Kumar, Radha Kamal Saraswat, Shashi Nandan

Counsel for Respondents:
A.K. Gupta, A.K. Gupta, S.C.

Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 - Section
21(1)(a) - Release Application - Bonafide Need - Joint Family Business -- Release application filed
by three landlord-brothers for release of a godown for establishing three adult sons in an independent
business of sale of empty tin cans -- Sons at time of filing unemployed and not engaged in any business --
Prescribed Authority rejected release application holding sons engaged in joint family business hence need not
genuine -- Appellate Court reversed finding, holding large joint family business does not extinguish
independent need of adult sons to start new venture -- Held: Merely because sons engaged themselves in
joint family business as stop-gap arrangement, their need for independent business cannot be held to be not
bonafide -- Every adult member of family has right to start his own independent business. (Para 1)
Subsequent Events - Death of Original Applicants - Effect on Bonafide Need -- Original applicantslandlords died during pendency of writ petition, succeeded by their sons and other legal heirs -- Contention
raised that need set up in release application stood eclipsed by subsequent event of death and consequent
engagement of successor-sons in family business -- Held: Crucial date for testing bonafide need of landlord is
date of filing of release application -- Subsequent events can affect such need only where they are of such
nature and dimension as to completely eclipse the need altogether -- Death of original applicant-landlords,
followed by successor-sons continuing family business for want of alternative livelihood, does not amount to
complete eclipse of need originally pleaded. (Para 2)
Partition of Joint Family Property During Pendency of Litigation - Effect on Need -- Partition
amongst joint family members during pendency of writ petition resulted in disputed godown falling to share of
specific successor -- Held: Partition of joint family property/business during interregnum of long-drawn
litigation does not by itself frustrate need of landlords since other members of family, including person in
whose share property fell, remain entitled to press same need for independent business. (Para 3)
Non-Disclosure of Other Accommodation - Effect -- Tenant contended landlords possessed other
business and residential premises not disclosed in release application, and that such non-disclosure vitiated
bonafide need -- Held: Non-disclosure of other premises in occupation of large joint family is not fatal where
such premises are shown to be unsuitable for proposed business -- Appellate Court having examined each
such property in detail and found none suitable, no adverse inference could be drawn against landlords. (Para
4)