Supreme Court Ruling: Appeals Cannot Be Dismissed on Merits if Appellant Fails to Appear, Must Be Dismissed for Non-Prosecution

In a recent landmark decision, the Supreme Court clarified the ramifications of non-appearance by appellants during hearings. According to the Court, an appeal cannot be dismissed on its merits solely due to the appellant’s absence; instead, it should be dismissed for non-prosecution. This interpretation arises from the elucidation provided in Order XLI Rule 17 of the Civil Procedure Code, 1908.

The relevant explanation in the order explicitly states: “Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.” Justices BV Nagarathna and Ujjal Bhuyan, forming the bench, emphasized that the dismissal, in such cases, should be attributed to non-prosecution rather than substantive merits.

The case in question pertains to a property dispute between the appellants and respondents. The appellants initially filed a suit seeking a permanent injunction against the respondents, which the Trial Court dismissed. Subsequently, the appellants pursued a second appeal in the Karnataka High Court.

During the scheduled hearing, the Junior Counsel informed the Court of the Senior Counsel’s cousin brother’s demise, resulting in the appellants’ unrepresented status. Despite this, the High Court chose to dismiss the appeal on its merits, asserting a lack of grounds for consideration. Dissatisfied, the appellants approached the Supreme Court for redress.

In presenting their case, the appellants argued that the High Court should have dismissed the appeal for non-prosecution rather than on merits. They also contended that the matter should be remanded for reconsideration by the High Court based on substantive merits.

Contrarily, the opposing party maintained that the appeal lacked merit, and the High Court’s order was justified due to the appellants’ consistent failure to appear.

After hearing both sides, the Supreme Court concurred with the appellants, asserting that the dismissal on merits contradicted the provisions of Order XLI Rule 17. Consequently, the Court allowed the appeal, reinstating it for reconsideration by the High Court.

Case Reference: BENNY DSOUZA vs. MELWIN DSOUZA, Diary No.- 42876 – 2023