JUDGMENT 1. - This restoration application has been filed on behalf of the appellant with a prayer to restore the Special Appeal No. 14/90 to its original number. 2. Appellant, Jagdish Prasad had filed writ petition challenging the seniority list of Inspectors Gr. II of Devasthan Department. The Writ Petition No. 587/79 filed by the appellant was dismiss by a learned Single Judge of this Court vide order dated September 19, 1989. Against this order of the learned Single Judge, special appeal was filed by the appellant under Section 18 of the Rajasthan High Court Ordinance, 1949. 3. The appeal was listed in the court on 7.3.90 but the same could not be taken up for consideration when the special appeal was taken up on 19.11.1990 none was present on behalf of the appellant, although the case was called twice. Upon this, the appeal was dismissed after examination of the legality of the order passed by the learned Single Judge. The Division Bench found that the order passed by the learned Single Judge did not call for interference in the special appeal. 4. In the restoration application, it has been stated that the counsel for the appellant was not available in Jaipur as he was out of station for the last one week. He came to Jaipur only in the evening of 19.11.90 and he could not appear before the court on 19.11.1990 for the aforesaid reason. 5. The question which arises for consideration is whether the application for restoration is at all maintainable when the special appeal has been heard and dismissed not for default of appearance, but on merits? 6. Learned Counsel for the appellant has argued that the provisions of Code of Civil Procedure are applicable to special appeals and, therefore, in the absence of counsel for appellant or appellant himself the appeal can only be dismissed for default and cannot be decided on merits. He has made reference to the provisions of Order 41, Rule 19. 7. Special appeals are filed in this court against the orders of the Single Bench passed in First Appeal or in exercise of extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Sometimes, Special Appeals are also filed against the decision of the Single Bench in Miscellaneous Appeal. 7. Special appeals are filed in this court against the orders of the Single Bench passed in First Appeal or in exercise of extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution of India. Sometimes, Special Appeals are also filed against the decision of the Single Bench in Miscellaneous Appeal. Section 18(1) of the Rajasthan High Court Ordinance which provides for appeal to the High Court from Judges of the Court reads as under: "18(1)-An appeal shall lie to the High Court, from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court and not being an order made in the exercise of revision jurisdiction and not being a sentence or order passed or made in exercise of the powers of superintendence under Section 43 or in the exercise of criminal jurisdiction) of one Judge of the High Court. 8. Section 37 of the Rajasthan High Court Ordinance provides for regulation of Civil Procedure. According to this Section, it shall be lawful for the High Court from time to time to make rules and orders for regulations the practice of the Court and for the purpose of adopting as far as possible the provisions of the law analogous to the Code of Civil Procedure, 1908, of the Indian Legislature, for the time being in force in the State to all Proceedings in its testamentary intestate and matrimonial jurisdiction respectively. 9. In exercise of the powers vested by Section 46 of the Rajasthan High Court Ordinance, 1949 read with Article 225 of the Constitution of India and all other powers enabling it in that behalf, the High Court framed "Rajasthan High Court Rules, 1952." 10. Neither the Rajasthan High Court Ordinance, 1949 nor the rules framed there under, contain any provision excluding the applicability of the Code of Civil Procedure in Special Appeals. 11. This question arose before a Division Bench of this court in Mahendra Singh v. Sohan Raj, AIR 1973 Rajasthan 219 . In Mahendra Singh's case, the point under consideration was as to whether Order 22 C.P.C. applies to special appeals filed under Section 18 of the Rajasthan High Court Ordinance, 1949. 11. This question arose before a Division Bench of this court in Mahendra Singh v. Sohan Raj, AIR 1973 Rajasthan 219 . In Mahendra Singh's case, the point under consideration was as to whether Order 22 C.P.C. applies to special appeals filed under Section 18 of the Rajasthan High Court Ordinance, 1949. It was argued that provisions for Special Appeals have not been made under the Code of Civil Procedure, but have been made by special law, namely, Rajasthan High Court Ordinance, 1949 and, therefore, by virtue of Section 4 of the Code of Civil Procedure, the applicability of Code of Civil Procedure to the Special Appeals is wholly excluded. Repelling that argument, the Division Bench proceeded to observe; "We have considered the argument of the learned Counsel carefully and we are unable to accept it. Section 4 does not mean that the Code does not apply to the proceedings under the special or local laws, but only in case where there is any inconsistency to the rules and the Code will have to yield before such laws. It follows therefore, that Section 4 itself does hot exclude the applicability of the provisions contained in the Code of Civil Procedure to the Special Appeals. All that Section 4 says is that if the procedure is prescribed by virtue of a special law then the procedure laid down in the Code in respect of the proceedings under the special law shall yield to the special procedure prescribed in that law. We know it well that no special procedure has been provided in the Rajasthan High Court Ordinance in regard to special appeals. The question that arises therefore, is whether the procedure prescribed under the Code of Civil Procedure will be applicable to the special appeals. 12. The Court then referred to Section 117 of the Code of Civil Procedure which provides that, "Save as provided in this part or in part 'X' or in rules, the provisions of this Code shall apply to such High Courts." it thereafter referred to the decision of the Privy Council in Mst. Sabitri Thankurain v. Savi, AIR 1921 PC 80 , wherein, their Lordships of the Privy Council had held that provisions of Order 41 Rules 10 C.P.C. equally apply to the appeals of Letters Patent. Sabitri Thankurain v. Savi, AIR 1921 PC 80 , wherein, their Lordships of the Privy Council had held that provisions of Order 41 Rules 10 C.P.C. equally apply to the appeals of Letters Patent. The Division Bench then proceeded to say that: "It is obvious from the plain language of Section 117 C.P.C. that the provisions of the Code are applicable to all proceedings before the High Court subject there being any inconsistency with the procedure prescribed in Letters Patent. Rajasthan High Court Ordinance, which provides for special appeal does not contain any inconsistent provision in the matter of abatement. It will therefore, follow that the provisions of Order 22 C.P.C. will be applicable to Letters Patent Appeals. 13. In view of the aforesaid judgment in Mahendra Singh v. Sohan Raj (supra), it must be held that unless we find any inconsistent provision in the Rajasthan High Court Ordinance, 1949 or the Rules framed thereunder, the provisions of the Code of Civil Procedure will be applicable to the special appeals under Section 18 of the Rajasthan High Court Ordinance. Only in case of inconsistency the provisions of the Rajasthan High Court Ordinance and the rules framed thereunder, it would prevail. We have examined the provisions of the Rajasthan High Court Ordinance 1949 and the rules framed thereunder and we do not find any provision on the subject matter which has been dealt with by Order 41 of the Civil Procedure Code. Order 41 Rules 11 C.P.C. provides for dismissal of appeal without sending a notice to the lower Court. Order 41 Rule 17 of the Civil Procedure Code provides for dismissal of appeals where the appellant does not appear on the date fixed by the court for hearing. Order 41 Rule 19 contain a provision regarding re-admission of appeal dismissed for default. No provision contained in the Rajasthan High Court Ordinance, 1949 or the Rules framed thereunder deals with these situations and, therefore, in our view the provisions contained in the Code of Civil Procedure will be attracted to the proceedings in Special appeal filed under Section 18 of the Rajasthan High Court Ordinance. 14. The next question, which requires determination is as to whether the special appeal can be dismissed on merits in the absence of appellant and if so, what remedy is available to the appellant? 14. The next question, which requires determination is as to whether the special appeal can be dismissed on merits in the absence of appellant and if so, what remedy is available to the appellant? Order 41 Rule 11, Order 41 Rule 17, Order 41 Rule 19 and Order 41 Rule 21 can usefully be quoted below:ORDER 41, Rule 11. "(1) 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 respondents or his pleader. (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. (3) The dismissal of an appeal under this rule shall be notified to the Court whose decree the appeal is preferred. (4) Where an Appellate Court, not being the High Court, dismisses an appeal under Sub-rule (I), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. 11.A. Every Appeal shall be heard under Rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed. ORDER 41, Rule 17 (1) Where on the day fixed, or on 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. Explanation-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. (2) Where the appellant appears and the respondent does not appear the appeal shall be heard ex-parte. Explanation-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. (2) Where the appellant appears and the respondent does not appear the appeal shall be heard ex-parte. ORDER 41, Rule 19 Where an appeal is dismissed under Rule 11, Sub-rule (2), or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum, so required the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. ORDER 41, Rule 21 Where an appeal is heard ex-parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. 15. The scope of these provisions has been examined by the various High Courts including the Rajasthan High Court and it will be proper to refer to some of the decided cases. 16. In M/s. Chandra Stores v. Cloth Merchants Association, AIR 1964 Rajasthan 197 the first appeal pending before the High Court was dismissed because the main counsel had not appeared and the second counsel who was looking after the case stated that he was unable to argue the case. After dismissal of the appeal, an application was filed by M/s. Chandra Stores under Order 41, Rule 19 C.P.C. The question arose, as to whether the dismissal of appeal for default of appearance would fall under Order 41 Rule 17 and as to whether an application for setting aside would lie under Order 41, Rule 19. After examining the provisions contained in the two rules, the Court held that in case of failure to put appearance by the counsel if the appeal is dismissed, such order would clearly fall within the purview of Order 41, Rule 17. 17. After examining the provisions contained in the two rules, the Court held that in case of failure to put appearance by the counsel if the appeal is dismissed, such order would clearly fall within the purview of Order 41, Rule 17. 17. In Dargah Committee, Ajmer v. Smt. Hamida Banu, AIR 1988 Rajasthan 169 the question which arose for consideration before the Court was, to whether cross-appeals filed by one of the parties can be dismissed on merits, or whether it should be decided by way of dismissal or default under Order 41, Rule 27. After examining different provisions of the Code of Civil Procedure, Mehta, J. observed as under: "The explanation given in Rule 17 of Order 41 only limits the scope of ft. 17 and does not take away the power of the Court to decide the appeal on merits if other provisions of the law permit it to do so. The very explanation indicates that the Sub-rule (1)of Rule 17 shall not be construed as empowering the court to dismiss the appeal on merits. The explanation was necessary as it was dealing with the matter of dismissal of appeal is default. Rule 17 is only directory in nature and it only by way of explanation declares that under Rule 17 the Court shall not decide the appeal on merits under Rule 17. However, the appeal can be decided on merits under other provisions of the law and there is no prohibition against the decision on merits of a cross appeal in the absence of the Advocate for the appellant in one appeal. 18. It was then observed: The word "power" is not synonymous with jurisdiction but comprehends the authority to carry out much of the functions as are necessary under the law. The jurisdiction of the appellate court is only restricted to the matter appealed against. It is not only the power but it is the duty of the appellate court under Section 107 C.P.C. to decide the appeal on the entire facts and law. Every Court trying civil cases has inherent power which is saved by Section 151 C.P.C. to take the cognizance of the questions which are impediment in the disposal of the appeals and, in fact, such powers should be exercised in order to meet the ends of justice where there may be no direct statutory provision therefore. Every Court trying civil cases has inherent power which is saved by Section 151 C.P.C. to take the cognizance of the questions which are impediment in the disposal of the appeals and, in fact, such powers should be exercised in order to meet the ends of justice where there may be no direct statutory provision therefore. There is no direct or even by implication any prohibition against the disposal of the appeals on merits if the appellant is absent. It is true Section 107 is subject to the limitations and conditions referred to in Schedule I In Schedule I there is no limitation prescribing a prohibition in the matter of disposal of the appeals on merits, if the appellant is absent. Rule 17 of Order 41 only deals with a question that if a court does not dismiss the appeals in default and wants to decide the appeal on merits, ft. 17 will not come into play at all. It only declares that Sub-Clause (1) does not empower the court under ft. 17 but it does not say that it prohibits the Court from deciding the appeal on merits. 19. Mehta, J. further expressed the view that if an appeal is dismissed in default of the plaintiff, the plaintiff gets two rights: (1) to move an application for restoration of the appeal under Rule 19 of Order 41 and the second alternative remedy is by way of Second Appeal. When the appeal is decided on merits, there is only one remedy that the appellant shall file the second appeal on merits. Majority of other High Courts have taken the view that under Order 41, Rule 17(1) the court has only two options i.e. either to adjourn the appeal or to dismiss it for want of appellant's appearance. Only under Order 41 Rule 16 the appeal can be decided on merits in the presence of the appellant. This view has been expressed in Musalia Rakth Muhamad v. Manaviakrama the Zamorin Rajah Agerwal, AIR 1923 Mad. 13 ; Taher Sheikh Chowkidar v. Otaruddi Howldar, AIR 1929 Cal. 475 ; Digendara Chandra Pal v. Radha Ballav Pal, AIR 1953 Assam 191 ; Kundha Singh v. The Punjab State, AIR 1962 Punjab 82 ; Mosafir Mahton v. Mt. This view has been expressed in Musalia Rakth Muhamad v. Manaviakrama the Zamorin Rajah Agerwal, AIR 1923 Mad. 13 ; Taher Sheikh Chowkidar v. Otaruddi Howldar, AIR 1929 Cal. 475 ; Digendara Chandra Pal v. Radha Ballav Pal, AIR 1953 Assam 191 ; Kundha Singh v. The Punjab State, AIR 1962 Punjab 82 ; Mosafir Mahton v. Mt. Bachani, AIR 1963 Pat 1 ; Chandra Stores v. Cloth Merchants Association, AIR 1964 Rajasthan 197 ; Deo Dutta Singh v. Ram Naresh Singh, AIR 1973 Pat 166 ; Emmanual Simon Peters v. Mrs. Alice Peters, AIR 1976 Delhi 148 and Gulam Kadir v. Sikander and Ors., AIR 1981 J&K 30 Contrary view has been expressed by the Allahabad High Court in its various decisions, namely, Chimanlal v. Syed Zahoor Uddin, AIR 1938 All. 548 ; Smt. Gujrani v. Ram Rati, AIR 1965 All 547 and Babu Ram v. Bhagwan Din, AIR 1966 All 1 . The views expressed by the Allahabad High Court have not been accepted by the different High Courts. 20. It is thus clear that there is preponderance of authorities supporting the view that an appellate court cannot dispose of an appeals on merits in the absence of appellant and the contrary view has been taken by the High Court of Allahabad and brother Mehta, J. There is an apparent conflict between the view taken by Mehta, J. and the view expressed in M/s. Chandra Stores case (supra) and there is a clear variance. While in Chandra Stores case the Division Bench took the view that if an appeal is dismissed on account of failure of the counsel to taken by Mehta, J. is that dismissal of an appeal even in the absence of counsel would not be covered by Order 41, Rule 17 and the only option for the appellant would be to prefer an appeal against that order. 21. Now, I may examine various provision of Order 41, Rule 17 contains two parts. First part deals with a situation where the appellant is absent, whereas the Second part deals with the situation where the respondent is absent. While Sub-rule (2) provides that appeal shall be heard on merits ex-parte even in the absence of respondent, Sub-rule (1) does not make such a provision. Rather explanation clearly says that nothing in the sub-rule shall be construed as empowering the court to dismiss the appeal on merits. While Sub-rule (2) provides that appeal shall be heard on merits ex-parte even in the absence of respondent, Sub-rule (1) does not make such a provision. Rather explanation clearly says that nothing in the sub-rule shall be construed as empowering the court to dismiss the appeal on merits. Where an appeal is dismissed either under Order 41, Rule 11 or under Order 41, Rule 17, the appellant can apply for re-admission of the appeal. Similarly, where an appeal is heard ex parte and decided against the respondent, he can apply to the appellate court to re-hear the appeal. Of course, under Order 41, Rule 19 as well as under order 41, Rule 21 the re-admission or re-hearing of the appeal would depend on the satisfaction of the court that the appellant or the respondent was prevented from sufficient from appearing when the appeal was called on for hearing. Significantly, two different expressions have been used in Rules 19 and 21. Where as the former speaks of its rehearing. These two expressions have been purposely used by the legislature to convey different meanings. There can be no question of re-hearing, unless an appeal has been heard previously. Hearing clearly implies hearing on merits, whether it is a hearing under Rule 16 or Rule 17 or Rule 30 of Order 41. In case the legislature contemplated hearing of an appeal on merits in the absence of the appellant as well, nothing could have stopped it from saying so in clear terms in Sub-rule (1) also, as it said while exacting Sub-rule (2). Even in the absence of any specific words, such an intention could have been gathered, had the legislature used the expression "re-hearing" in place of the expression "re-admission" in Rule 19, as it did in the case of Rule 21. 22. It is manifest that while enacting Sub-rule (1) the legislature never contemplated dismissal of an appeal on merits as it did while enacting Sub-rule (2). It was for this reason that it employed two different expressions "re-admission" and "re-hearing" in Rules 19 and 21, respectively. This inference is further fortified by similar expressions used in Rules 3, 4 and 8 of Order 9, which are in pari-materia with Order 41, Rule 17(1), in as much as, these Rules deal with dismissal of suits, not on its merits but for default of the plaintiff. This inference is further fortified by similar expressions used in Rules 3, 4 and 8 of Order 9, which are in pari-materia with Order 41, Rule 17(1), in as much as, these Rules deal with dismissal of suits, not on its merits but for default of the plaintiff. In dealing with Rule 17(1) a Division Bench of the Patna High Court in Mosafir Mahton case (supra) made the following observations: "-This view is supported by the contrast of the language of Order XLI, Rule 17(2) which empowers the appellate court to hear the appeal ex parte "where the appellant appears and the respondent does not appear." For these reasons we held that upon a proper interpretation of Order XLI Rule 17(1), the appellate Court has no jurisdiction to hear the appeal is called on for hearing. The only course open to the appellate court in these circumstances is to adjourn the case to another date, or to make an order dismissing the appeal ex parte. This view is borne out by the decision of the Madras High Court in Musaliarakath Muhamad v. Manavikrams, ILR Mad. 882 : AIR 1923 Mad. 13 , the decision of the Calcutta High Court in Taher Sheikh v. Otrauddi Howladar, AIR 1929 Cal. 475 and the decision of the Allahabad High Court in Nasir Khan v. Itwari, AIR 1924 All 144 . Reference was made on behalf of the respondent to a decision of a single Judge of the Patna High Court in Daulat Singh v. Kesho Prasad Singh, AIR 1921 Pat 325 , but with great respect we think that this case has not been correctly decided. 23. The preposition that Rule 17(1) does not envisage dismissal of an appeal on merits, has not been disputed by the High Court of Allahabad as well. Its Full Bench in Babu Ram's case (supra) has, however take the view that the change introduced in the language of Rule 17(1) in the Code of 1908 is not without any purpose. 23. The preposition that Rule 17(1) does not envisage dismissal of an appeal on merits, has not been disputed by the High Court of Allahabad as well. Its Full Bench in Babu Ram's case (supra) has, however take the view that the change introduced in the language of Rule 17(1) in the Code of 1908 is not without any purpose. By substituting the expression "the appeal shall be dismissed in default", which occurred in Section 556 of the Act of 1982, for the expression "the court may make an order that the appeal be dismissed" employed in Rule 17(1), the Legislature intentionally made the said Rule permissive in character, and gave three options to the court; i.e. either to adjourn the appeal, or to dismiss it for default of the appellants appearance, or to dispose it of on merits by invoking Rule 30. This is borne out from the following observations made by the full bench in its judgment in Babu Ram's case: "It does not admit of any doubt that the dismissal provided for by Order XLI, Rule 17(1) is not a dismissal on merits, but a dismissal only for default of appearance. On the language of the sub-rule the order that the appeal be dismissed as to be casually connected with the situation mentioned therein, and the order of dismissal which the appellate court is empowered to pass thereunder 'cannot have its basis in anything else except the failure of the appellant to appear when the appeal is called on for hearing.... And, again: ..."I have examined these decisions with great care and profound respect, but I have failed to see how this limitation can be placed upon the discretion of the court and from where it can be derived, once the existence of the discretion is accepted. Of course, if there had been nothing in the Code empowering the Court to dispose of the appeal of an appellant who is absent at the hearing in any other manner save the one provided by Order XLI, Rule 17(1) it would have been indisputable that in case the appeal is not adjourned it has to be dealt with in the manner provided by the said provision. But if there is under the Code a general power dealing with an appeal otherwise as well, that power, unless expressly excluded will remain exercisable by the court even where Order XLI, Rule 17(1) is applicable. In that case the power conferred by Order XLI, Rule 17(1), has to be regarded only as an additional power that may be used in the Situation mentioned in it and not as also a limitation upon the generality of the power given elsewhere. The general power of the Court of appeal is contained in Rules 30, 32 and 38 of Order XLI. 24. In my view, therefore, the court has no power to dismiss the appeal on merits when the appellant is not present in the court either personally or through his counsel. The course open to the court is either to adjourn it or to dismiss it in default for appearance of the appellant. I am further of the view that even if an appeal is heard on merits and is dismissed, such dismissal of appeal shall be construed as a dismissal under Order 41, Rule 17 and an application under Order 41 Rule 19 for re-admission of appeal is maintainable. In my humble opinion, the views expressed in Chandra Stores' case (supra) represent the correct preposition of law. 25. The application filed on behalf of the appellant shows that the learned Counsel was not available in Jaipur 19.11.1990 and he reached Jaipur only on 19.11.1990 and on that count, he could not appear before the Court. The appellant has suffered on account of default of appearance of the counsel. No notice had been issued by the Court till 19.11.1990. Therefore, it will be proper that an opportunity of hearing should be afforded to the appellant. The restoration application, therefore, deserves to be allowed and the special appeal deserve to be heard for admission. 26. Per D.L. Mehta, J.: 26. Section 99 of the Code of Civil Procedure provides that, no decree shall be reversed or substantially various nor shall any case be remanded, in appeal on account of any mis-joinder (or non-joinder) of parties or causes of action or any error, defect or irregularity in any proceeding in the suit, not affecting the merits of the case or the jurisdiction of the Court. 27. 27. Section 103 of the Code of Civil Procedure provided that, in any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which was wrongly been determined by such Court or courts by reason of a decision on such question of law. 28. Section 107 C.P.C. deals with the powers of the Appellate Court. It reads as under: (1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power: (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. 29. Clause (2) further provides that, subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. 30. Section 108, C.P.C. deals with the procedure in appeals from appellate decrees and orders. 31. Under Order 9 C.P.C. the suit can be dismissed in default in the absence of the plaintiff and it can also be restored on showing the sufficient cause. 32. Under Order 17 Rule 2, the Court has a power to adjourn the case. Looking to this fact that the Advocates are not appearing a provision has been added that when the hearing of the suit has been commenced it shall be taken day today until all the witnesses in attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the following day is necessary. Generally Clause (a) of Rule 2 of Order 17 is not followed and the cases are not heard day today. Clause (3) provides that, no adjournment shall be granted at the request of the party except where the circumstances are beyond the control of that party. 33. Generally Clause (a) of Rule 2 of Order 17 is not followed and the cases are not heard day today. Clause (3) provides that, no adjournment shall be granted at the request of the party except where the circumstances are beyond the control of that party. 33. It will not be out of place here to mention that Clause (c) of Rule 2 of Order 17 provides that the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment. Thus, it directs the Court to decide the case according to law. 34. Rule 2 of Order 17, C.P.C. provides that where on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit. Rule 3 of Order 17, further provides that, where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the Court may, notwithstanding such default: (a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is, absent, proceed under Rule 2. 35. Thus, the case can be decided under Order 17 if the party fails to perform the duties cast on him. It is not necessary to dismiss the suit in default. One should take note of the provisions of Section 107 of the Code which is having the over-riding effect over the orders and the rules framed under the Code of Civil Procedure. The power of the appellate Court springs from Section 107 and not from Order 41 C.P.C. Order 41 is procedural and is directive in nature and Rule 17 of Order 41 cannot have the over-riding effect on Section 107, C.P.C. 36. The power of the appellate Court springs from Section 107 and not from Order 41 C.P.C. Order 41 is procedural and is directive in nature and Rule 17 of Order 41 cannot have the over-riding effect on Section 107, C.P.C. 36. I will also like to examine the provisions of Order 41 Rule 17 C.P.C. Rule 17 deals that, where on the day fixed, or on 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. Thus, in the main section the Court has a power to pass any order which may be considered just and proper in the facts and circumstances of the case. The explanation provides that, nothing in the sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. This explanation cannot have an over-riding effect on Section 107. Apart from that it only provides that, this Rule does not empower the Court to dismiss the appeal on merits. In fact, Rule 17 does not empower the Court to dismiss the appeal on merit. It is provided under Section 107 read with Rules 23A, 24, 25, 26 and Rule 33 of Order 41 C.P.C. It will also like to make it clear that this rule provides that, where the party appears and the respondent does not appear, the appeal shall be heard ex-parte. Thus, if in the absence of the respondent, the appeal can be decided on merits, there is no reason why in the absence of the appellant the appeal cannot be decided on merits. Apart from that the explanation only provides that, nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on merits. It does not take away the rights of the Court which the Court is having under other provisions of the law. It is not prohibitory in nature. If the Legislature could have applied prohibiting the dismissal of appeal on merits, the explanation should have been added in the form that, no appeal shall be dismissed on merits. However, such explanation has not been added. I will also like to read the word 'shall' as 'may' and to hold that this explanation is directory in nature. 37. If the Legislature could have applied prohibiting the dismissal of appeal on merits, the explanation should have been added in the form that, no appeal shall be dismissed on merits. However, such explanation has not been added. I will also like to read the word 'shall' as 'may' and to hold that this explanation is directory in nature. 37. For illustration, I will like to add that if there are five appeals against the same judgment and decree filed by the appellants having a common interest no decision can be given without deciding all the appeals simultaneously. In such cases, if on every date one appellant remains absent then the Court will be bound to adjourn the appeal by rotation and the Court will not have the power to decide the appeal. If 'A' is absent today, 'B' is absent on the another days, 'C is absent on the next day, and 'D' is absent on the next day, for this reason, every appeal will have to be adjourned, because, there cannot be a separate judgment and decree. The parties are having common interest and they have preferred separate appeals. To construe Rule 17 that it takes away the powers of the Court to decide the case on merits in the absence of the appellant amounts to abdication of the duty cast on the Court. 38. For the reasons mentioned above, I am in dis-agreement with the view taken by my brother Justice Singhvi and I am of the view that the matter needs determination by the larger Bench. *******