Dismissal of appeal for default

N.K.Assumi (Querist) 29 March 2009 This query is : Resolved
Dear All,
In an appeal proceedings, the apellant after filling appeal petition and after filling of Affidavit in Opposition by the respondents, the appellant do not appear on several occassion to hear the FAO on merits. In such a case can the appellate court dismissed the appeal on merits inspite dismisal of appeal for default?

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Kiran Kumar (Expert) 29 March 2009
well appellate court has power either to dismiss it in default or decide it on merits in the absence of appellant.

pls refer to Bani Singh v/s State of U.P

citation i dont remember but u may check it from the software of AIR, probably was decided in late 90s.

N.K.Assumi (Querist) 29 March 2009
Dear Kiran,
Thank you so much for the valuable information.But is it high court or SC decision.? I am grappling with the problems, as the appellant are not appearing and Order 41 of the CPC said that dismissal on default & not on merits.

Murali Krishna (Expert) 29 March 2009
The citation is (1996)4 SCC 720.

Decision was under Sec 385 Cr.PC. -- Appeal against conviction.

N.K.Assumi (Querist) 29 March 2009
Never mind about the conviction, but was it dismissal on default or on merit?

Tribhuwan Pandey (Expert) 29 March 2009
Once an appeal is admitted and is placed for hearing on merits, it can be dismissed for default but cannot be decided on merits in absence of applicant or his advocate.

Civil Appeal No. 6142 of 2008 The Secretary Department of Horticulture, Chandigarh and another Vs Raghu Raj

SANJAY DIXIT (Expert) 29 March 2009
Yes Mr Pandey is abs. RIGHT.
In civil matters the case should be dismissed in default in absence of applicant. Either a civil suit or an appealate court may use the powers for dismissal in default.

Adv.Shine Thomas (Expert) 30 March 2009
Mr.Pandey is correct.

A. A. JOSE (Expert) 30 March 2009
I agree with Mr.Kiran Kumar. However, let more experts give further inputs please.

PALNITKAR V.V. (Expert) 30 March 2009
Normally appeal can not decided on merits in absence of the accused.

M. PIRAVI PERUMAL (Expert) 30 March 2009
I agree with Mr. Pandey.

adv. rajeev ( rajoo ) (Expert) 30 March 2009
I agree with all the members answered, in view of the amended CPC appeal can be dismiised on merits instead of default

Sushil Kumar Bhatia (Expert) 30 March 2009
An appeal can be dissmissed in default of appellant as there is a provision for readmission of aappeal under or.41 rule 19 CPC, if appellant was absented on the date of hearing of appeal the court can only dissmiss the appeal in default, not on merit