Benny D’Souza & Ors. Vs Melwin D’Souza & Ors. (Supreme Court of India)
In the case of Benny D’Souza & Ors. Vs Melwin D’Souza & Ors., the Supreme Court addressed the issue of whether a High Court can dismiss an appeal on its merits if the appellants fail to appear. The appellants had not shown up in court due to their counsel’s personal loss, leading the High Court to dismiss the appeal on the grounds that it lacked merit. The Supreme Court found this action improper, as per Order XLI Rule 17 of the CPC, which stipulates that if an appellant does not appear, the court should dismiss the appeal only for non-prosecution and not on its merits. Consequently, the Supreme Court overturned the High Court’s decision and ordered the case to be reinstated for a proper hearing on its merits.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
Leave granted.
The appellants herein are the plaintiffs who were the appellant in RSA No.196/2022. The only grievance of the appellants herein is with regard to the dismissal of the said appeal vide order dated 26.09.2023 on merits although the appellants were not represented inasmuch as there was no counsel who appeared for the appellants and the junior counsel for the appellants submitted that the senior counsel engaged in the matter, was not available as his cousin had passed away. Therefore, on account of a bereavement in the family of the arguing counsel there was no representation on behalf of the appellants before the High Court.
