JUDGMENT 1. - This is a civil restoration application preferred in D.B. Civil Special Appeal (Writ) No. 14/1990. The present appellant-petitioner Jagdish Prasad Singhal had preferred a letters patent appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, against the judgment and order dated 19.9.1989 passed by the learned Single Judge of this Court in S.B. Civil Writ Petition No. 587/1979. The special appeal came up for admission before the division bench consisting of Hon'ble Mr. Justice D.L. Mehta, as he then was, and Hon'ble Mr. Justice G.S. Singhvi on 19.11.1990. No one appeared on behalf of the appellant and the division bench decided the appeal on merits and dismissed it summarily. The appellant then the present petition for restoration of the appeal which had been decided on merits and dismissed on 19.11.1990. Thereafter, the division bench considered the question as to whether the application for restoration was at all maintainable when the special appeal had been heard and dismissed not in default but on merits. On this question, one of the Judges of the division bench namely Hon'ble Mr. Justice G.S. Singhvi opined and held as under:- "The application for behalf of the appellant shows that the learned counsel was not available in Jaipur on 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 deserves to be heard for admission". 2. Hon'ble Mr. Justice D.L. Mehta, as he then was, recorded his own order from pages 15 to 20 and recorded as under:- "For the reasons mentioned above, I am in disagreement with the view taken by my brother Justice Singhvi. I am of the view that the matter needs determination by the larger bench". 3. The file was then placed before Hon'ble the Chief Justice and on 24.9.1992, Hon'ble the Chief Justice ordered that the matter may he listed before Hon'ble Mr. Justice M.B. Sharma, Hon'ble Mr. Justice I.S. Israni and Hon'ble Mr. Justice V.K. Singhal. I am of the view that the matter needs determination by the larger bench". 3. The file was then placed before Hon'ble the Chief Justice and on 24.9.1992, Hon'ble the Chief Justice ordered that the matter may he listed before Hon'ble Mr. Justice M.B. Sharma, Hon'ble Mr. Justice I.S. Israni and Hon'ble Mr. Justice V.K. Singhal. Thereafter, it was again recorded by the Chief Justice on 12.2.1993 that since there is difference of opinion between the two learned Judges, it is referred to Justice M.R. Calla; may be listed in the month of March, 1993. This is how this matter comes up before me as there is difference of opinion between the two Hon'ble Judges of the division bench who have recorded their respective orders on 12.12.1991. 4. I have heard Shri P.N. Agrawal, learned counsel for the appellant-Petitioner at length. He has invited my attention to the various provisions of Order 41 CPC, particularly Order 41 Rules 17, 19 and 21 Civil Procedure Code. Order 41 Rules 17, 19 and 21 Civil Procedure Code are reproduced as under:- "17. Dismissal of appeal for appellant's default. - (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.Hearing appeal ex parte - (2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte." 19. Re-admission of appeal dismissed for default. - 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 readmit the appeal on such terms as to costs or otherwise as it thinks fit.21. Re-hearing on application of respondent against whom ex parte decree made. Re-hearing on application of respondent against whom ex parte decree made. - 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. 5. The argument of Shri P.N. Agrawal, learned counsel for the appellant-petitioner is that a reading of these three Rules i.e. Rules 17, 19 and 20 of Order 41 Civil Procedure Code would show that there is no question of the dismissal of an appeal on merits in case of the non-appearance of the appellant. He has made emphatic reference to the Explanation added under rule 17 of Order 41 Civil Procedure Code and has also submitted that in view of this Explanation, there is a clear impediment against the dismissal of appeal on merits under Rule 17. He has also invited my attention to the use of the words 're-admission of the appeal' as referred in Rule 19 and the words 're-hearing' as mentioned in Rule 21ORDER41 Civil Procedure Code. I have also gone through the reasoning recorded in respective orders dated 12.12.1991 and having heard Shri P.N. Agrawal, I find muself to be in agreement with the reasoning and the view taken by Hon'ble Mr. I have also gone through the reasoning recorded in respective orders dated 12.12.1991 and having heard Shri P.N. Agrawal, I find muself to be in agreement with the reasoning and the view taken by Hon'ble Mr. Justice G.S. Singhvi, for the following reasons:- (i) The language of the Explanation under Rule 17ORDER41 Civil Procedure Code i.e. nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits makes it amply clear that the court has not been clothed with the power to dismiss an appeal on merits in case of the default of the appellant in view of the clear language mentioned in the main part of Order 41 Rule 17 Civil Procedure Code that in case the appellant does not appear when the appeal is called on for hearing the court may make an order that the appeal be dismissed but this dismissal does not include dismissal on merits and power to dismiss appeal on merits in case of the default of the appellant has been specifically excluded by the 'Explanation' added under Rule 17ORDER41 C.P.C.(ii) It has been categorically provided in Rule 19ORDER41 C.P.C that where an appeal is dismissed under Rule 17ORDER41 Civil Procedure Code the appellant may apply to the court for re-admission of the appeal and in case he is able to show that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the appeal has to be listed for re- admission. That clearly shows that the decision of the appeal on merits is not contemplated otherwise the legislature would not have used the word 're-admission'. That clearly shows that the decision of the appeal on merits is not contemplated otherwise the legislature would not have used the word 're-admission'. Use of the word 're-admission' shows exclusion of the decision on merits at the time when the order is passed under Order 41 Rule 17 C.P.C and therefore, if any application is moved under Order 41 Rule 19 Civil Procedure Code for restoration and the same is allowed, the appeal has to be listed for admission again.(iii) The reasoning that under Order 41 Rule 17(2) Civil Procedure Code where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte and therefore, if the appeal can be heard ex parte on merits in absence of the respondent, why it cannot be heard on merits in case of the non-appearance of the appellant, does not impress me for the simple reason that a provision has been made with regard to the restoration or readmission of the appeal under Rule 19, and a provision has also been made under Order 41 Rule 21 Civil Procedure Code for re-hearing of the case if an application is moved by the respondent against Whom the ex parte decree is made. Therefore, when the appellant is present and the respondent is absent and when an ex parte order is passed on merits, the matter is to be listed for re-hearing whereas in case of the absence of the appellant, if the appeal is dismissed in default, the matter is to be listed for re-admission under Rule 19 Order 41 C.P.C.(iv) The word 're-hearing' as has been used in Rule 21 Order 41 Civil Procedure Code also contemplates that so far as the decision of the appeal in absence of the respondent is concerned, it can be on merits and the matter can be re-opened on an application under Rule 21 but so far as the absence of the appellant is concerned, the appeal can only be dismissed in default and it cannot be decided on merits. The reasoning which has been given in the order recorded by Hon'ble Mr. The reasoning which has been given in the order recorded by Hon'ble Mr. Justice D.L. Mehta (as he then was) that if the legislature would have meant the prohibition of dismissal of appeal on merits, an explanation should have been added in the form that 'no appeal shall be dismissed on merits', does not appeal to me and I am in respectful disagreement with the same, for the simple reason that according to the language of 'Explanation', its correct import is that 'no appeal shall be dismissed on merits'. To say that 'no appeal shall be dismissed on merits' and to say that 'nothing in this rule shall be construed as empowering the court to dismiss appeal on the merits', is one and the same thing and since the 'Explanation' starts with the words 'nothing in this rule shall be construed as empowering the court to dismiss the appeal on merits', it clearly shows that the power to dismiss appeal on merits in case of want of the appellant's appearance, has been clearly forbidden and taken away. Nothing turns out of the reasoning that the word 'shall' be read as 'may' because in such like provision, if the word used is 'may', in certain cases it can be read as 'shall' but when in the statute itself the word has been used as 'shall', there is no question of reading it as 'may' in the context of 'Explanation' below Order 41 Rule 17 C.P.C. 6. Regarding the illustration given by Hon'ble D.L. Mehta, J. that in case of more than one appeal 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 and in such cases if on every date one appellant remains absent the court will be left with no option but to adjourn the case by rotation and it will not be able to decide the appeal, I may straightaway say that even if such a hypothetical extreme situation is conceived, the court is not powerless to deal with such a situation and pass appropriate order according to the need at hand to meet the ends of justice and therefore such an illustration can hardly furnish a ground to clothe the power on the court to dismiss the appeal on merits for want of the appellant's appearance and the true and correct import is that the power to decide on merits in such cases is forbidden. 7. For the reasons aforesaid, I agree with the view taken by Hon'ble Mr. Justice G.S. Singhvi. 8. Consequently, the restoration application is allowed. It is directed that the special appeal may be listed for admission before the Bench concerned.Appeal restored. *******