JUDGMENT : - This appeal is filed by the original defendant who was appellant in Regular Civil Appeal No.85 of 2004. Limited question that is raised in appeal is as follows: "Whether the first appellate Court is competent to decide any appeal on merit when on the date of hearing none appeared, and was the Court bound to dismiss the appeal for want of prosecution or nonappearance in view of Order 41, Rule 17 instead of hearing and deciding the appeal on merits of the case?" 2. This Court is satisfied after hearing both learned Advocates that the question framed in para 1 is a substantial question of law, and this second appeal is admitted on this substantial question of law. 3. Learned Advocate for the respondent is ready to argue the case for final hearing and waives notice of final disposal, and the second appeal is taken up for final hearing forthwith. 4. Heard. Factually, it is a common ground that the appellant was absent when the appeal was called out for final hearing before the District Court. In the opening of the Judgment impugned itself, the learned Appellate Judge has observed that Advocate for the appellant as well as the appellant are absent. 5. Learned Advocate for the appellants relied upon the reported judgments of this Court, they are as follows: (1) 1997(1) Mh.LJ. 566 , Abdur Rahman and others Vs. Athifa Begum and others. (2) 2001(4) Mh.L.J. 358 , Digambar Vanji Mali Vs. Kisan Khandu Chaudhar. 6. In view of these two Judgments and even on plain reading of Rule 17(1) of Order 41 of Civil Procedure Code, it is clear that the first appellate Court can dismiss the appeal if nobody is present for the appellants on the date of hearing. It is not proper on the part of the appellate Court to record the findings on merits of appeal. 7. Learned Advocate for the appellants is not in a position to dispute about only course available under Order 41 Rule 17 of the Civil Procedure Code. 8. This Court finds that the substantial question of law framed in para No.1 above, is liable to be answered in favour of the appellants, holding that only course available to the appellate Court when appellant and his Advocate are absent at the time of hearing is to dismiss the appeal for non - appearance/for want of prosecution. 9. 8. This Court finds that the substantial question of law framed in para No.1 above, is liable to be answered in favour of the appellants, holding that only course available to the appellate Court when appellant and his Advocate are absent at the time of hearing is to dismiss the appeal for non - appearance/for want of prosecution. 9. In the result, appeal deserves to be allowed, and is accordingly, allowed, however, in the peculiar facts of the case, parties are directed to bear own costs. 10. The Judgment and decree passed by the first Appellate Court in Regular Civil Appeal No.85 of 2002 decided on 22 - 09 - 2005 is quashed and set aside, and is remanded for hearing and disposal as per law within two months from the date of receipt of the Writ of this Court. Appeal allowed.