JUDGMENT SURINDERSARUP, J. 1. The facts giving rise to the second appeal are that the suit of the plaintiff-respondents was decreed by the Senior Sub Judge, Solan by judgment dated 1.12.1992, thereby passing a decree in their favour for possession of the suit premises detailed in para 1 of the plaint. Feeling aggrieved, the defendant-appellants filed an appeal and the same has been dismissed on merits by the learned District Judge, Solan by judgment dated 23.9.1998, hence the present second appeal by them. 2. After hearing the learned counsel for the parties the appeal is being disposed of at the admission stage for the reasons recorded hereinafter. 3. It is not disputed that the first appeal has been heard and disposed of on merits by the learned lower appellate court despite the fact that the appellants were not present on the relevant date. This is also borne out from the recordings much as it is indicated on the first page of the certified copy of the impugned judgment under appeal that none (nemo) was present on their behalf. No doubt, it is stated in para 7 thereof that when the said appeal was taken up for arguments, the counsel for the appellants sought permission to retire from the appeal, which was not granted by the learned court below. Be that as it may, the fact remains that the appeal was beard [ and dismissed on merits despite the fact that the appellants were not/ i present on that date. 4. It has been forcefully urged by the learned counsel for the appellants before this court that the impugned judgment suffers from a grave illegality in as much as the same has been rendered in contravention of the mandatory requirement of order 41 Rule 17 CPC. The same provides that if the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed. An explanation has been added to the said Rule by Act, 104 of 1976 whereby it is provided that nothing in this sub-rule i.e. Order 41 Rule 17(1) CPC shall be construed as empowering the court to dismiss the appeal on the merits. An explanation has been added to the said Rule by Act, 104 of 1976 whereby it is provided that nothing in this sub-rule i.e. Order 41 Rule 17(1) CPC shall be construed as empowering the court to dismiss the appeal on the merits. In the considered view of this court the use of the word shall1 in the said explanation clearly makes it a mandatory requirement that in the absence of the appellants, in case he does not appear when the appeal is called on for hearing, the court is not empowered to dismiss the appeal on the merits. 5. The matter is not res integra. In the case of Ghulam Qudir and others Vs. Sikandar and others (A.I.R 1981 Jammu & Kashmir 30) a Division Bench of that High Court has held that under Order 41 Rule 17(1) j CPC the court has no power to dismiss the appeal on merits if the appellant is absent. The course open to it in such an eventuality is that it can either adjourn the appeal or dismiss it in default of appellants appearance. In the said ruling it has been clearly laid down that it is manifest that Rule 17(1) does not contemplate dismissal of appeal on merits when the appellant is not present personally or through his counsel. 6. A perusal of the report in Ghulam Qadirs case (supra) indicates that while coming to the above conclusion the Jammu & Kashmir High Court referred to the following cases : 1. Thakur Sukhpal Singh V. Thakur Kalyan Singh and another (AIR 1963 S.C. 146); 2. Deo Dutta Singh and others Vs. Ram Naresh and others (AIR 1973 Patna 166). It has been held therein that when the appellants does not appear when the appeal is called on for hearing, the court may either adjourn it or dismiss it for default but it has no power to dismiss the appeal on merits; and 3. Emmanual Simon Peters Vs. Mrs. Alice Peters and another (AIR 1976 Delhi 148). 7. Learned counsel for the plaintiff respondents has drawn the attention of this court to the effect that as indicated in para 7 of the impugned judgment, the counsel for the appellants was present before the lower appellate court but wanted a permission to withdrawn from the appeal which was not granted. Alice Peters and another (AIR 1976 Delhi 148). 7. Learned counsel for the plaintiff respondents has drawn the attention of this court to the effect that as indicated in para 7 of the impugned judgment, the counsel for the appellants was present before the lower appellate court but wanted a permission to withdrawn from the appeal which was not granted. At the same time there is no indication as to why the said permission was not granted. Secondly, in case the counsel was not in a position to argue the appeal of the appellants, the only course open to the learned lower appellate court was either to adjourn the hearing or to dismiss the appeal in default in view of the law laid down in the authorities referred to above. This was not done and instead the appeal was dismissed on merits. 8. In fairness to the learned counsel for the plaintiff-respondents, he has placed reliance on certain ruling, namely Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others (1999) 3 SCC 722), Kshitish Chandra Purkait Vs. Santosh Kumar Purkait and others (AIR 1997 S.C. 2517); Mohammad Khalil V. Kamaruddin (1997 (1) S.L.J. 687) Sainsi V. Inder and another (1979 P.L.J. 69) and Pargah Committee, Ajmer V. Smt. Hamida Banu and another (AIR 1988 Rajasthan 169) Having gone through these authorities, this court finds that none of them has a bearing on the point in issue and, therefore, they are distinguishable. 9. It has lastly been urged on behalf of the plaintiff-respondents that the appellants having not raised the objection regarding non-compliance of the provision of Order 41 Rule 17(1) Explanation CPC in the present second appeal, and also that no substantial question of law is involved. There is no merit in this submission. Non-Compliance of the above said provision has rendered the impugned judgment illegal and the mere fact that this point has not been raised in the grounds of appeal before this court is immaterial as this aspect goes to the root of the case. Therefore, the learned counsel for the appellants is well within his rights I to urge this point at the time of hearing before this court. 10. Therefore, the learned counsel for the appellants is well within his rights I to urge this point at the time of hearing before this court. 10. In so far as the aspect of substantial question of law being involved is concerned, reference may be made to the observations of the Apex Court in the case reported in 1999 (3) S.c.C.722 (Kondiba Dagudu Kadam V. Savitribai Sopan Bujar and others) on which reliance has been placed by the learned counsel for the plaintiff-respondents. These observations are a s follows : "...The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court was based upon inadmissible evidence or arrived at without evidence." 11. In the present case the approach of the learned lower appellate court was wholly erroneous being contrary to the mandatory provisions of law i.e Order 41 Rule 17(1) Explanation CPC. Therefore, applying the tests laid down by the Apex Court and referred to above, this non- If compliance of the mandatory provisions of law by the learned lower u appellate court in the present case ipso4acto becomes a substantial question of law requiring the interference of this court in second appeal in V| order to do substantial justice inter parties. 12. For the reasons recorded above, this appeal is allowed, the judgment of the learned District Judge, Solan, dated 23.9.1998 is set aside and the case is remanded back for a fresh decision in accordance with law in the light of the observations and conclusions made and drawn above. The parties through their learned counsel are directed to appear before the District Judge, Solan on 30th December, 1999.