D. K. SETH, J. ( 1 ) THE defendant respondent in Misc. Civil Appeal No. 61 of 1999 had assailed the order dated 26. 7. 1999 passed in the said appeal by means of this writ petition. ( 2 ) BY an order dated 26. 7. 1999 the appeal was admitted fixing 28. 9. 1999 for argument. While admitting the appeal an order of status quo was issued till the next date. ( 3 ) SHRI Sudama Ji Shandilya, learned counsel for the petitioner contends that the order of admission and order of status quo was passed without hearing the defendant-petitioner without giving any opportunity of hearing. Therefore, the said order cannot be sustained. He also contends that while admitting the appeal, the learned appellate court did not consider the evidence and the materials on record. Therefore, the said order is liable to be set aside. These are the two grounds on which the said order was challenged. ( 4 ) I have heard learned counsel for the petitioner at length. ( 5 ) ORDER XLI. Rule 11 of the Code of Civil Procedure is as follows : "11. Power to dismiss appeal without sending notice to lower court.-- (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 respondent 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 the rule shall be notified to the Court from whose decree the appeal is preferred. (4) Where an appellate court, not being the High Court, dismisses an appeal under sub-rule (1), 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. (4) Where an appellate court, not being the High Court, dismisses an appeal under sub-rule (1), 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. " ( 6 ) A plain reading of the above provision makes it clear that the appeal court, after sending for the record or without or before sending for the record, may fix a date for hearing the appellant or its counsel, and on such date, may dismiss the appeal without sending notice to the Court, the decree of which is appealed against and without serving notice on the respondents or his pleader. The expression "after sending for the record if it thinks fit so to do" implies that sending for the records before fixing the date for hearing under Order XLI, Rule 11 (1) of the Code is discretionary. If it thinks fit it may do so or it may not do so. It is open to the appeal court to dismiss the appeal on the date fixed after hearing the appellant or his pleader. Such dismissal order can be passed without sending notice to the Court whose decree is appealed against. The appeal can be dismissed under sub-rule (1) even without serving notice upon the respondent. Under sub-rule (2) thereof on the date fixed or on any adjourned date if the appellant fails to appear, the appeal court is free to dismiss the appeal in default. Such dismissal is to be notified to the Court, the decree whereof was appealed against in view of sub-rule (3) thereof. But one thing is imperative, viz. , fixing a day for hearing the appellant or his pleader. The appeal court may dismiss either after hearing the appellant or his pleader under sub-rule (1) or may dismiss in default under sub-rule (2) thereof. The expression "may" occurring in sub-rule (2) makes it clear that the appeal court in its discretion may dismiss or it may not. If it does not exercise the discretion to dismiss in default then it may either adjourn the date and fix another or it may admit the appeal even in the absence of the appellant. The expression "may" occurring in sub-rule (2) makes it clear that the appeal court in its discretion may dismiss or it may not. If it does not exercise the discretion to dismiss in default then it may either adjourn the date and fix another or it may admit the appeal even in the absence of the appellant. In Bindhu Bhusan Sarkar v. Kulakamini Bose, 52 CWN 517, the Calcutta High Court took the view that "may" in sub-rule (2) indicates that the Court has discretion to pass any order other than dismissal. ( 7 ) THE dismissal under sub-rule (1) is a summary dismissal, whereas under sub-rule (2) it is in default for non-prosecution. But in no case the dismissal under sub-rule (2) can be on merits. Inasmuch as if an appeal at the stage of final hearing cannot be dismissed on merits in the absence of the appellant or its pleader in view of Order XLI, Rule 17 (1) the language whereof is identical with those of Order XLI, Rule 11 (2), then it cannot be conceived that it can be so dismissed on merit under Order XLI, Rule 11 (2 ). ( 8 ) AN appeal raising a triable issue should not be summarily dismissed. This view as taken by the apex Court in the case of Mahender Tukaram Vatale and others v. Smt. Sugandha and another, air 1972 SC 1932 and Umakant Vishnu Junnakkar v. Parashuram Damodar Vaidya, AIR 1973 sc 218 . In the case of Smt. Neelawwakaom Annappa Enape and another v. Chinnawwa Maruti enape. AIR 1970 Mys 138, it was held that when a first appeal present a serious controversy on facts, its summary dismissal would be misuse of Rule 11. ( 9 ) IF the appeal is not dismissed under Rule 11, then it is to be processed or proceeded according to the procedure laid down Rule 12 onwards. Rule 12 prescribes that if the appeal is not dismissed under Rule 11, then a date of hearing of the appeal shall be fixed. Rule 13 requires that if the appeal is not dismissed under Rule 11 then notice of appeal is to be sent to the Court the decree whereof is in appeal and for transmission of the records to the appeal court. Rule 14 requires services of notice upon the respondents. The expression admit is in contradiction to dismissed. Rule 13 requires that if the appeal is not dismissed under Rule 11 then notice of appeal is to be sent to the Court the decree whereof is in appeal and for transmission of the records to the appeal court. Rule 14 requires services of notice upon the respondents. The expression admit is in contradiction to dismissed. It represents the meaning that "the appeal will be heard," it does not decide any issue. It does in no way affect the right of the respondent or prejudices him. Rule 11 is a process for screening, through which appeals raising triable issues are filtered in and those without are weeded out. It is an advantage to the respondents who may find the appeal dismissed even without his opposition. Order XLI, Rule 11 conceives of a stage before notice is sent to the Court passing the decree in appeal and before service of notice to the respondent. It prevents unnecessary harassment of the respondent in an appeal that fails to raise a triable issue. ( 10 ) THUS, Order XLI. Rule 11 empowers the appellate court to dismiss an appeal without sending notice to lower court. The question of admission does not require giving any notice or opportunity to the respondents. It is at the threshhold of the appeal, whether the said appeal should be dismissed or not. If the" learned appellate court finds that the appeal could not be dismissed then it shall admit the appeal and send notice and call for record. Order XLI, Rule 11 does not provide for any scope of giving any notice to the respondent at the time of admission under the said rule. Though the heading of Rule 11 prescribes power to dismiss appeal without sending notice to lower court but in effect it is an admission of an appeal. Or in other words, it is a determination by the appellate court as to whether the appeal should be dismissed without calling for records and sending notice to the respondents or not. If it comes to a finding that the appeal cannot be dismissed. In that event, it is an admission, meaning thereby that the appeal is not being dismissed and is being admitted for hearing and only thereafter notices are required to be issued and records are called for. If it comes to a finding that the appeal cannot be dismissed. In that event, it is an admission, meaning thereby that the appeal is not being dismissed and is being admitted for hearing and only thereafter notices are required to be issued and records are called for. ( 11 ) THE appeal court is also empowered to grant an Interim order while admitting the appeal under Order XLI. Rule 5. Therefore, such grant of interim Injunction does not call for giving of opportunity to the respondent before passing such an Interim order if sufficient cause is shown by the appellant for such grant at interim stage. The remedy open to the respondent is to appear and either file an application for vacating the interim order or to oppose the application under order XLI. Rule 5 when it is taken up for disposal and to contest the appeal. Therefore, the defendant-petitioner is not without any remedy. It is open to him to apply for vacating the interim order on sufficient notice to the appellant. If such an application is filed, it is incumbent upon the appellate court to decide the same as early as possible after giving opportunity to the respective parties and pass appropriate order according to his own wisdom and discretion. ( 12 ) IN such circumstances, both the points urged by the learned counsel for the petitioner appears to be misconceived. The writ petition, therefore, fails and is accordingly dismissed. However, it is expected that the appeal court would decide the appeal as expedltlously as possible, if sufficient ground therefor is made out by the respondents. However, there will be no order as to cost. .