1996 INSC 1196
                                            Abdur Rahman and Others

                                                           Vs

                                             Athifa Begum and Others

                                         Civil Appeal No. 11460 of 1996

                                        (M. M. Punchhi, K. T. Thomas JJ)

                                                      30.08.1996

                                                        ORDER

1. Leave granted.

2. 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 against which the
High Court should have been well advised not to indulge in at the stage or (sic of) 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.