D. P. HIREMATH, J. ( 1 ) THIS application under Order 41, Rule 19 read with Section 151, CPC is filed in the following circumstances. ( 2 ) THE appellant/applicant challenged the decree of the first appellate Court in R. A. No. 22/1987 on certain substantial questions of law formulated by him in the appeal memo as required. The defendant in the Original Suit is the appellant and he suffered a decree in the trial Court for declaration of title of the plaintiff/respondent to the suit property and for delivery of vacant possession of the area under dispute. The parties are said to be brothers. The first appellate Court confirmed the decree. When the appeal came up for admission on 15-4-1991, the learned Single Judge made the following order:"none appears for the appellant. This matter was heard on 8-2-1991 and notice directed to the other side. The respondent/plaintiff has appeared through counsel who is present in Court today. I have satisfied myself that no injustice is caused by dismissing this appeal for non-prosecution as it is on the concurrent findings of the Courts-below and no substantial question of law arises for consideration. "though in the memorandum of facts in support of I. A. II it is stated that the counsel appearing for the appellant was seriously ill and unable to move out of the house due to acute diabitic neurosis and because of his physical inability he could not go to the court and represent the matter. None appeared before Court when the matter was taken up for admission. ( 3 ) THE point now for consideration is whether this application under Order 41, Rule 19, CPC is maintainable as this Court in the absence of the counsel appearing for the appellant proceeded to observe that no substantial question of law arises for consideration, which ultimately may mean that the appeal was not found fit for admission on merits. The respondent supports the order contending that the judgment being one passed on merits, application under Order 41, Rule 19 is not maintainable. The respondent supports the order contending that the judgment being one passed on merits, application under Order 41, Rule 19 is not maintainable. ( 4 ) ORDER 41, Rule 11 (1) reads thus: the Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. Under Rule 11 (2):"if on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. "under Rule 11 (3):"the dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. "thus Rule 11 is attracted to a stage where the appeal is not yet admitted and posted for hearing on merits. Rule 16 relates to the procedure on hearing. Explanation to Order 17 (1) states that nothing in sub-rule (1) shall he construed as empowering the Court to dismiss the appeal on merits. Under sub-rule (1) of rule 17 where on the date fixed or on any other date to which hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the court may make an order that appeal be dismissed. Thus this is the stage when the appeal is posted for hearing. After it is admitted to hear on the substantial questions of law arising in the appeal. Rule 19 relates to re-admission of appeal dismissed for default. It is necessary to note that Rule 19 does not confine itself to Rule 17 only. On the other hand, it applies to Rule 11 as well when it states that where an appeal is dismissed under Rule 11, sub-rule (2) of Rule 17 or Rule 18 the appellant may apply to the appellate Court for re-admission of the appeal. These are the relevant provisions which are now required to be considered in this application. On the other hand, it applies to Rule 11 as well when it states that where an appeal is dismissed under Rule 11, sub-rule (2) of Rule 17 or Rule 18 the appellant may apply to the appellate Court for re-admission of the appeal. These are the relevant provisions which are now required to be considered in this application. Rule 19 makes reference to sub-rule (2) of Rule 11 which states that if on the day or any other date to which the hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the Court may make an order that the appeal be dismissed. This is analogous to the provisions of Rule 17 (1 ). It is contended that the explanation to Rule 17 may as well attract the provisions of Rule 11 though it is not expressly stated so under Rule 11 that the court has no power to dismiss the appeal on merits in the absence of the appellant. ( 5 ) MY attention is also invited to Order 42, Rule 2, CPC which refers to power of the Court to direct that the appeal be heard on the questions formulated by it. It says that at the time of making an order under Rule 11 of Order 41 for the hearing of the second appeal, the Court shall formulate the substantial question of law as required by Section 100 and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court given in accordance with the provisions of Section 100. Thus Rule 2 of Order 42 refers to Rule 11 of Order 41 as well. What is required to be done before admitting an appeal is stated in Rule 11 which means hearing the appellant or his pleader and then coming to the conclusion if the substantial question of law arises or not. Incidentally the respondent's counsel invited my attention to Chapter II of the rules framed by this High Court which relates to be definitions and interpretations. Incidentally the respondent's counsel invited my attention to Chapter II of the rules framed by this High Court which relates to be definitions and interpretations. Rule l (p) reads thus: "to admit a case" means to decide to issue notice to respondent or direct issue of notice to respondent after preliminary perusal of papers or preliminary hearing under provisions of Order 41, Rule 11 of CPC or Section 421 of Cr. P. C. or any other like provision of any other law for the time being in force; the words "admissions", "for Admission" or similar expressions shall be construed accordingly. Whereupon such preliminary perusal or hearing the Court decides not to issue notice, the case is said to be dismissed summarily. " referring to this definition, It was urged that the Court has power to peruse the papers as a preliminary step or give a preliminary hearing to decide to issue notice to respondent or direct issue of notice to respondent. Issuing of notice to respondent may be at a stage where the Court has not yet decided to hear the appeal on admission. This however is not in conflict with Rule 11 of Order 41 which speaks of hearing the appellant or his pleader before dismissing the appeal without sending notice to lower Court to issuing notice to the respondent. That being so, the preliminary stage or preliminary hearing contemplated under this Rule l (p) cannot be construed as hearing for admission itself. Therefore, whether the Court proceeds to hear under rule 11 or Rule 17, it must be deemed that the said hearing is either to decide or determine any substantial question of law involved in that appeal or on merits respectively. Undoubtedly, the stage under Rule 17 had not reached and the Court was at the stage under Rule 11. Broadly speaking, it is apparently clear from reading of Rule 11 of Order 41 or Order 42, Rule 2 that the appellant's counsel or appellant must be heard before the Court decides whether there is substantial question of law involved or not in the appeal. Broadly speaking, it is apparently clear from reading of Rule 11 of Order 41 or Order 42, Rule 2 that the appellant's counsel or appellant must be heard before the Court decides whether there is substantial question of law involved or not in the appeal. The Court sitting in the second appeal has the task of perusal of the Judgments of the trial Court and the first appellate Court before deciding whether the appeal involves substantial questions of law or not, as the question of fact decided in the first appellate Court could not be reopened unless appreciation of evidence is perverse. Therefore, for-that reason perhaps Rule 11 lays down that after fixing the date for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal. If he does not appear sub-rule (2) gives power to the Court to dismiss the appeal and this cannot be construed as giving power to the Court to dismiss on merits. When the appeal reaches the High court it has to apply its mind while considering the appeal for admission and hearing the appellant's counsel who would assist the Court in determining the questions involved in the appeal. That being so, it cannot be said that the order passed by this court in the absence of the appellant should be construed as an order passed on hearing the appellant and on merits. It is thus follows that even at the stage of admission the appeal cannot be dismissed on merits stating that no substantial question of law is involved. ( 6 ) WHAT should happen to the order that is already passed by this Court is the next point for consideration. When this Court finds that even at the admission stage an appeal could not be dismissed on merits, the Court has broad discretion of rectifying its own order as the apex Court of the State to impart justice and to prevent failure of justice that may occasion if its order were to stand. When this Court finds that even at the admission stage an appeal could not be dismissed on merits, the Court has broad discretion of rectifying its own order as the apex Court of the State to impart justice and to prevent failure of justice that may occasion if its order were to stand. In my view, therefore, the order now in question cannot be deemed to have been passed on merits as the same was passed without hearing the appellant's counsel and considering the grounds made out in the memorandum of facts that the counsel was seriously ill and was not in a position to attend the Court on the date fixed for admission as constituting sufficient cause for the Advocate not being present, the order in question dated 15-4- 1991 is set aside holding the same to be an order passed for default of the appellant's counsel and the appeal is restored to file. The same shall be posted for admission. --- *** --- .