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Civil Revision No. 1715 of 1985, decided on 24th February, 1986.

‑‑. O. XLI, r. 17‑Dismissal of appeal for non‑prosecution‑Word "may", connotation of‑Use of word "may" in O. XLI, r. 17, Civil Procedure Code, 1908, held, would empower Court either to dismiss appeal for want of prosecution or to adjourn same to any future date in exercise of discretionary power ‑Provisions of r. 17 of O. XLI, Civil Procedure Code, 1908, would not allow acceptance of appeal in absence of appellant‑Even, where arguments of appellant were heard non‑prosecution of appeal, thereafter, due to absence of appellant would not justify deciding same on merits.‑[Words and phrases].

Daulat Singh and others v: Maharaja Kesho Prasad Singh A I R 1921 Pat. 325 ref.

Messrs S. M. Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd., Karachi and another P L D 1976 Kar. 268 rel.

‑‑ S. 115 & O. XLI, r. 17 ‑Revisional jurisdiction‑invoking of Revisional jurisdiction of High Court, held, could not be invoked where first appellate Court had not committed any illegality or irregularity in dismissing appeal in default.

Syed Fayyaz Husain Qadri for Petitioner.

This civil revision has arisen out of an appeal filed by the petitioner, Haji Abdul Aziz Nizami, against the respondents. Mst. Attia Begum and others, which was dismissed by man Additional District Judge, for non prosecution.

2. It was contended by learned counsel for petitioner that the petitioner (appellant) had argued the appeal and, therefore, it should have been decided on merits. According to him. the learned Additional District Judge had committed a material irregularity in dismissing the appeal in default. He cited Daulat Singh and others v. Maharaja Kesho Prasad Singh (A I R 1921 Pat. 325) to support his arguments.

3. View taken in the case of Daulat Singh and others was dissented froth in the case of Messrs S. M. Abdullah & Sons v. Messrs Pakistan Mercantile Corporation Ltd., Karachi and another (P L D 1976 Kar. 268). In the case of Messrs S.M. Abdullah & Sons it was held by Zaffar Hussain Mirza, J. (now an eminent Judge of the Supreme Court) that the absence of the appellant at the time of hearing does not empower the appellate Court under rule 17 of Order XLI, C. P: C. to dismiss the appeal on merits."

4. When attention of the learned counsel was drawn to the above dictum in the case of Messrs S. M. Abdullah & Sons it was submitted by him that the said case was distinguishable. In this connection, it was pointed out by him that in the case of Messrs S. M. Abdullah & Sons arguments of any side had not been head, but in the instant case arguments of the appellants were over. According to him. learned Additional District Judge ought to have heard arguments of the respondents in the absence of the petitioner and decided the appeal on merits.

5. It is true that in the case of Messrs S. M. Abdullah & Sons arguments of the appellant had not been heard but the fact that in the case in hand the appellant had addressed arguments did not warrant the disposal of his appeal on merits. Rule 17, Order XLI of the Code of Civil Procedure deals with the situation in which the appellant is absent on the date of hearing of his appeal. In view of the word may used in rule 17, it is discretionary with the Court to dismiss the appeal for want of prosecution or adjourn it to any future date. If it is held that the appellate Court can decide the appeal on merits in the absence of the appellant, it will follow that the appeal can also be accepted if there is justification therefor. Rule 17, however, does not allow the acceptance of appeal in the absence of the appellant. If the intention of framers of the rules was that the appellate Court may decide the appeal on merits also in the absence of the appellant, they would have used the words "proceed to decide the appeal forthwith" or other similar language instead of the words "make an order that the appeal be dismissed", but this was not done. While formulating the phrase "proceed to decide the appeal forthwith" I had in mind the provisions of rule 3 of Order XVII of the Code of Civil Procedure. In rule 3, which deals with suits, it has been laid down that where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith". There is thus, no authority for the proposition that since the appellant's arguments had been heard in this case it could be decided on merits. In taking this view, I am fortified by following observations recorded in the case of Messrs S. M. Abdullah & Sons :‑

"There is yet another aspect of the matter. That is that, the language of Order XLI, rule 17, C. P. C. which is a specific provision dealing with the procedure in case of non‑appearance of the appellant. empowers the Court to dismiss the appeal. On the other hand, if the contrary view, as mentioned above is accepted and it is held that the Court would be competent to consider the merits of the appeal, it would follow that in such a situation the Court would further be competent to decide the appeal, despite the absence of the appellant in his favour. The consequence could be that the appellate Court may accept the appeal. But the plain language of the rule does not make a provision for such a judgment ; the only power being to dismiss the appeal."

6. I, therefore, with respect, rely on the case of Messrs S. M. Abdullah & Sons and hold that the learned Additional District Judge did not commit any illegality or material irregularity in dismissing the appeal in default.

7. There is no force in this petition. It is dismissed in limine.

A. A. Revision dismissed.

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