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PETITIONER: ABDUR RAHMAN & ORS

       Vs.

RESPONDENT: ATHIFA BEGUM & ORS

DATE OF JUDGMENT:       28/08/1996

BENCH: K. RAMASWAMY, K. VENKATASWAMY

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The  qualified   notice  issued   to  the   respondents indicated that  this Court  proposed to  grant leave against the impugned  judgment and  order of  the High  Court and on allowing the  appeal, was expecting to remit the matter back to the  file of the High Court for disposal of the matter on its  merits.  The  respondents’  learned  counsel  has  been confronted with  the proposition that though the High Court. could have dismissed the appeal in default in the absence of the appellants’  counsel, it  could not have adverted to the merits of  the case.  Here, the High Court has recorded that all relevant  aspects of  the matter  have been  taken  into account in  order to hold that there was no available ground for interference  with the decision of the Trial Court. This was an  exercise with  which the High Court should have been well-advised not to indulge in at the stage or Order 41 Rule 17 CPC. The Explanation to Order 41 Rule 17(1) CPC says that nothing in  this sub-rule  shall be  construed as empowering the Court  to dismiss  the appeal  on the  merits. The  High Court having  transgressed that  limit, we have therefore no option but  to allow  the appeal.  set  aside  the  impugned judgment and order of the High Court and put the matter back to its  file for  fresh disposal  in  accordance  with  law. Ordered accordingly. No costs.