Appeal in appellant's absence cannot be decided on merits; recall requires sufficient cause for non-appearance.

When the appellant is absent, an appeal cannot be decided on merits under Order XLI Rule 17 CPC and must be dismissed for default. The rule draws a clear distinction between the appellant's non-appearance and the respondent's absence, which may permit ex parte hearing in a different situation. Re-admission or recall under the relevant provisions requires proof of sufficient cause for non-appearance, and the court found no such cause on the record. The disposal was therefore corrected in form, but the refusal to recall the order was upheld and no relief followed.

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Issues: (i) Whether an appeal in which the appellant does not appear can be decided on merits instead of being dismissed for default under Order XLI Rule 17 of the Code of Civil Procedure, 1908; (ii) whether the dismissal of the application to recall the ex parte disposal and the connected dismissal for default was justified in the absence of sufficient cause for non-appearance.

Issue (i): Whether an appeal in which the appellant does not appear can be decided on merits instead of being dismissed for default under Order XLI Rule 17 of the Code of Civil Procedure, 1908.

Analysis: Order XLI Rule 17 permits dismissal of an appeal when the appellant does not appear, and the explanation expressly prohibits dismissal on merits in such a situation. The distinction between sub-rule (1), which deals with the appellant's default, and sub-rule (2), which permits ex parte hearing when the respondent does not appear, shows that the court's power is different in the two situations. The legal position is that where the appellant is absent, the appeal cannot be adjudicated on merits.

Conclusion: The appeal of the appellants ought not to have been decided on merits in their absence and could only have been dismissed for default.

Issue (ii): Whether the dismissal of the application to recall the ex parte disposal and the connected dismissal for default was justified in the absence of sufficient cause for non-appearance.

Analysis: Re-admission of an appeal dismissed for default under Order XLI Rule 19 depends on the appellant showing sufficient cause for non-appearance, while rehearing after ex parte disposal under Order XLI Rule 21 rests on a similar showing. The court recorded a categorical finding that no sufficient cause was established for the appellants' absence, and there was no basis to disturb that finding. Even after correcting the form of disposal to dismissal for default, no ground existed to recall the order.

Conclusion: The refusal to recall the order was upheld, as sufficient cause for non-appearance was not shown.

Final Conclusion: The legal principle against deciding an absent appellant's appeal on merits was affirmed, but no relief followed because the appellants failed to establish sufficient cause for recall, and the appeals were therefore dismissed.

Ratio Decidendi: An appeal cannot be decided on merits when the appellant is absent and the proper course is dismissal for default, but recall or re-admission requires proof of sufficient cause for non-appearance.

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