Case Title: BENNY DSOUZA vs. MELWIN DSOUZA, Diary No.- 42876 – 2023
Summary
The Supreme Court has ruled that an appeal can only be dismissed for non-prosecution if the appellant fails to appear at the scheduled hearing. This ruling is based on Order XLI Rule 17 of the Civil Procedure Code, 1908, which grants the court the authority to dismiss an appeal if the appellant fails to appear. In a property dispute between respondents and appellants, the appellants filed a lawsuit and appealed to the Karnataka High Court. However, the High Court dismissed the appeal on merits, citing a lack of justifiable grounds. The Supreme Court ruled that the dismissal was in violation of Order XLI Rule 17 and reinstated the case in the High Court.
About the case
The appellant’s appeal may be dismissed for non-prosecution, rather than on the merits, if they fail to appear at the scheduled hearing, according to the Supreme Court. In the context of an explanation provided in Order XLI Rule 17 of the Civil Procedure Code, 1908, these findings were made. This order grants the Court the authority to dismiss an appeal in the event that the appellant fails to appear on the scheduled hearing date. The explanation is as follows: “Explanation. – The Court shall not be empowered to dismiss the appeal on the merits by any provision of this sub-rule.
The Bench of Justices BV Nagarathna and Justice Ujjal Bhuyan, in their interpretation of the Explanation, stated that the appeal can only be dismissed for non-prosecution and not on merits if the appellant fails to appear at the hearing. The current case is centered on a property dispute between the respondents and the appellants. The appellants filed a lawsuit against the respondents after the dispute, seeking a permanent injunction. Nevertheless, the Trial Court dismissed the matter. As a result, the appellants filed a second appeal with the Karnataka High Court.
Nevertheless, the Junior of the arguing Senior Counsel informed the Court that the Senior Counsel’s cousin brother had passed away on the date the appeal was scheduled for hearing. Consequently, the appellants were not represented.
Nevertheless, the High Court dismissed the appeal on the merits, concluding that there were no justifiable grounds for considering it. Angered by this, the appellants brought their case to the Supreme Court. The appellant argued that the High Court could have dismissed the appeal for non-prosecution, but not on the merits. Furthermore, the argument was made that the High Court could remand the matter for reconsideration on the basis of its merits.
Conversely, the opposing party maintained that the appeal was without merit and that the impugned order was issued due to the appellants’ consistent failure to appear before the High Court. The Court made the aforementioned observations after hearing both parties and determined that the dismissal of the appeal on merits was in violation of Order XLI Rule 17. In light of this, the Court granted the appeal and reinstated the matter in the High Court.
