JUDGMENT Sanjay K. Agrawal, J. 1. The substantial questions of law formulated and to be answered in this appeal is as under:-- "1. Whether the First Appellate Court was justified in deciding the appeal filed by defendants under Section 96 of the Code of Civil Procedure on merits in absence of appellant or his counsel and thereby allowing the appeal in view of provision contained in Order 42 Rule 1 of the Code of Civil Procedure read with explanation to Order 41 Rule 17 of Code of Civil Procedure, 1908? 2. Whether the finding regarding the limitation of lower appellate Court is perverse?" The imperative facts required for determination in this appeal are as under:-- "[For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court] (2.1) The plaintiffs' suit for declaration of title and recovery of possession was decreed by the trial Court by judgment and decree dated 9.10.2009 declaring sale deed null and void and holding plaintiffs to be the title holder of the suit land and directing the defendant No. 1 to handover the possession of the suit land to the plaintiffs. (2.2) The defendants filed first appeal under Section 96 of the Code of Civil Procedure challenging the judgment and decree of the trial Court, decreeing the suit. On 10.3.2010 the appeal was duly admitted and the matter came up for hearing on 10.9.2010. On that day neither appellant nor his counsel as well as respondent/plaintiff nor his counsel were present before the first appellate Court; and in absence of the parties and their counsel, learned first appellate Court considered the appeal and reserved the appeal for judgment and pronounced the judgment on 27.9.2010 and thereby allowed the appeal." 2. Feeling aggrieved and dissatisfied with the judgment and decree dated 27.09.2010 passed by Additional District Judge (F.T.C.), Pendraroad, District Bilaspur in Civil Appeal No. 53-A/2009 arising out the judgment and decree dated 09.10.2009 passed by Civil Judge, Class-I, Pendraroad, District Bilaspur in Civil Suit No. 233-A/2002, the present second appeal has been filed by the plaintiffs under Section 100 of the Code of Civil Procedure. 3. Shri Ashok Kumar Soni, learned counsel appearing for the appellants/plaintiffs would submit that the first appellant has committed a palpable legal error of jurisdiction in hearing the appeal on merits in absence of appellants or his counsel. 3. Shri Ashok Kumar Soni, learned counsel appearing for the appellants/plaintiffs would submit that the first appellant has committed a palpable legal error of jurisdiction in hearing the appeal on merits in absence of appellants or his counsel. He would further submit that in view of explanation appended to Order 41 Rule 17 of the CPC, the first appellate Court has only option of dismissing the appeal for non- prosecution in absence of appellant/defendant on the date of hearing and the first appellate Court could not have recorded findings on merits allowing the appeal, therefore, impugned judgment and decree deserves to be allowed. 4. As against this, Shri Roop Naik, learned counsel appearing for the respondent No. 1/defendant No. 1 would submit that the explanation attached to Order 41 Rule 17 of the CPC only prohibits the first appellate Court not to dismiss the appeal on merits in absence of appellant or his counsel, but the same does not restrain the first appellant to allow the appeal on merits, and therefore, appeal has no merit and the appeal deserves to be dismissed. 5. I have heard learned counsel appearing for the parties and perused the records of both the courts below including judgment and decree impugned. 6. Order 41 of the CPC provides procedure for hearing of 'Appeals from Original Decrees'. Rule 1 to 4 deal with 'Form of Appeal', grounds to be taken in 'Memorandum of Appeal' 'Application for condonation of delay', etc.. Rule 5 to 8 relate to 'Stay of Proceedings and of Execution'. Rules 9 to 15 provide for 'Procedure on Admission of Appeal', Rule 16 to 29 deal with 'Procedure on Hearing'. Once an appeal is admitted, Rules 16 of Order 41 would apply. Rule provides for 'Dismissal of Appeal for defendant's Default'. It reads thus; "17. Dismissal of appeal for appellants' 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. (2) Hearing appeal ex parte.-- Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte." 7. Explanation--Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. (2) Hearing appeal ex parte.-- Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte." 7. Explanation-to Rule 17 of Order 41 was inserted by the Code of Civil Procedure (Amendment) Act, 1976. Before, insertion of Explanation to Rule 17. 8. Reason for inserting explanation and amending the provision can foe gathered from the objects and reasons of the Amendment Act, 1976. "Clause 90-sub-clause (viii).--When an Appellate Court does not dismiss an appeal summarily, it should fix a date for the hearing of the appeal. The procedure therefore is provided in Rule 17 which provides 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 is dismissed. In this rule the word 'may' shows that apart from dismissal of the appeal for default, the Court can pass other orders. One such order could be adjournment of the appeal. There is, however, a conflict of decision on the question whether, if the appellant does not appear, the Appellate Court can dispose of the appeal on the merits. The Allahabad High Court has held that a decision on the merits is permissible. But the other High Courts have taken a different view. Having regard to the conflict of decisions, Rule 17 is being made more explicit by adding an Explanation thereto to the effect that dismissal of an appeal on merits would not be permissible". 9. The question as to whether, the first appeal having been admitted for hearing can be considered on merits under Order 41 Rule 17 of the CPC came to be considered before the Supreme Court in case of The Secretary, Department of Horticulture, Chandigarh & Anr. v. Raghu Raj AIR 2009 SC 514 the Supreme Court has held that once an appeal is admitted and placed for hearing i.e. hearing on merits, it can be dismissed for default but cannot be decided on merits in absence of appellant or his advocate, wherein it was inter alia observed as under: "44. v. Raghu Raj AIR 2009 SC 514 the Supreme Court has held that once an appeal is admitted and placed for hearing i.e. hearing on merits, it can be dismissed for default but cannot be decided on merits in absence of appellant or his advocate, wherein it was inter alia observed as under: "44. It is true that in the instant case, the appeal before the High Court was not an Appeal from Original Decree (First Appeal), but an Appeal from Appellate Decree (Second Appeal). But Rule 1 of Order XLII which deals with Appeals from Appellate Decrees (Second Appeals) lays down procedure and expressly states that the Rules of Order XLI shall apply so far as may be to Appeals from Appellate Decrees. Prima facie, therefore, it appears that once an appeal is admitted and is placed for hearing i.e. hearing on merits, it can be dismissed for default but cannot be decided on merits in absence of appellant (or his advocate)." 10. The above stated principle has been reiterated by the Supreme Court in case of Ghanshyam Dass Gupta v. Makhan Lal, (2012) 8 SCC 745 . Para 7 & 8 of the report states as under:-- "7. Rule 17(1) of Order 41 deals with the dismissal of appeal for the appellant's default. The abovementioned provision, even without Explanation, if literally read, would clearly indicate that if the appellant does not appear when the appeal is called for hearing, the Court has to dismiss the appeal. The provision does not postulate a situation where, the appeal has to be decided on merits, because possibility of allowing of the appeal is also there, if the appellant has a good case on merits; even if nobody had appeared for the appellant. 8. Prior to 1976, conflicting views were expressed by the different High Courts in the country as to the purport and meaning of sub-rule (1) of Rule 17 of Order 41 CPC. Some High Courts had taken the view that it was open to the appellate court to consider the appeal on merits, even though there was no appearance on behalf of the appellant at the time of hearing. Some High Court had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for the appellant's default. Conflicting views raised by the various High Courts gave rise to more litigation. Some High Court had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for the appellant's default. Conflicting views raised by the various High Courts gave rise to more litigation. The legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, the Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained absent or left unrepresented on the day fixed for hearing the appeal. The reason for introduction of such an Explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for non-appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant." 11. Further, the Supreme Court in case of Abdur Rahman v. Athifa Begum, (1996) 6 SCC 62 has considered the scope of Explanation to Rule 17(1) of Order 41 CPC and has held that the High Court could not go into the merits of the case if no one has appeared on behalf of the appellant. 12. In the light of the aforesaid discussion, it is luminously clear that once an appeal is admitted and placed for hearing, the first appellate Court, in absence of the appellant/his counsel cannot hear the appeal on merits either to allow it or to dismiss it, the only course available and open to the first Appellate Court is to dismiss the appeal for non-prosecution. The submission of learned counsel for respondent No. 1, deserves to be and is hereby rejected. 13. The submission of learned counsel for respondent No. 1, deserves to be and is hereby rejected. 13. Having examined legal position, reverting back to the facts of the case, it would be profitable to refer and quote the proceedings of the first appellate Court recorded on 10.9.2010 and 27.9.2010, which read as under:- ^^10-9-2010 vihykFkhZ dh vksj ls dksbZ ughaA mrjoknh dzekad 1 o 2 vuqifLFkfrA mrjoknh dzekad 3 vuqifLFkfrA iwoZ ls ,d i{kh;A dbZ ckj iqdkj yxkbZ xbZA dksbZ mifLFkfr ugha gSA izdj.k fu.kZ; gsrq fu;r fd;k tkrk gSA i{kdkjksa dk vknsf’kr fd;k tkrk gS fd os pkgs rks fu.kZ; ds 03 fnu iwoZ fojks/kh i{kdkj dks fyf[kr rdZ dh dkih nsdj fyf[kr rdZ is’k djsA izdj.k fu.kZ; gsrq fnukad 27-9-2010A** 27-9-2010 vihykFkhZ )kjk Jh ‘kSysUnz prqosZnh vf/k-A mrjoknh dz- 1 o 2 )kjk Jh v;ks/;k iVsy vf/koDrk mi-A fu.kZ; izFkd ls Vafdr djk;k tkdj [kqys U;k;ky; esa ?kksf”kr] fnukafdr ,oa gLrk{kfjr fd;k x;kA fu.kZ; vuqlkj vihykFkhZx.k dh vihy Lohdkj dh xbZ ,oa fopkj.k U;k;ky; )kjk ikfjr fu.kZ; ,oa vkfKIr dks vikLr fd;k x;kA fu.kZ; ds vuqlj.k esa fMdzh cukbZ tkosA fu.kZ; dh izfr ds lkFk fopkj.k U;k;ky; dk ewy vfHkys[k okil dh tkosA izdj.k lekIrA izdj.k dk ifj.kke ntZ dj vfHkys[k] vfHkys[kkxkj esa tek dh tkosA** 14. A close reading of the order sheets dated 10-9-2010 and 27-9-2010, it would be transparently clear that on 10.9.2010, defendants, who stand as appellants before the First Appellate Court and their counsel both were not present to prosecute the appeal; the first Appellate Court considered the matter and posted the appeal for judgment on 27.9.2010 giving the parties to submit their written submission, which the parties did not file and judgment was delivered on 27.9.2010. 15. 15. In the considered opinion of this Court, in view of the decisions of the Supreme Court in the aforesaid cases, the first appellate Court is wholly unjustified in deciding the appeal on merits in absence of defendants-appellants therein before the First Appellate Court or his counsel as only course/option available to the first appellate Court was to dismiss the appeal for non-prosecution and the course adopted by the first appellate Court in considering and deciding the appeal on merits in absence of defendants or his counsel is contrary to the legislative provision engrafted in Order 41 Rule 17 of the CPC read with explanation, and thus, the approach of the first appellate court was wholly erroneous being contrary to the mandatory provisions of Order 41 Rule 17 of CPC. 16. The Supreme Court in case Kondiba v. Savitri Bai, (1999) 3 SCC 722 has held that the High Court cannot substitute its opinion for the first appellate Court unless it is found that the conclusion 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 pronouncement made by Apex Court. 17. Thus, for non-compliance of the Order 41 Rule 17 CPC by the first appellate Court, judgment and decree passed by the first appellate Court, which is being not sustainable in law deserves to be set aside. Substantial question No. 1 is answered accordingly, in view of answer to first substantial question of law, second substantial question of law need not be answered as the appeal deserves to be allowed on the first substantial Question of law and the matter needs to be remanded to the first appellate Court for hearing and disposal in accordance with law. 18. For the reasons mentioned hereinabove, the appeal is allowed. Impugned judgment and decree impugned dated 27.09.2010 passed by First Appellate Court being not sustainable in law deserves to be and is hereby set aside. The appeal is remitted back to the first appellate Court for hearing and disposal in accordance with law after affording due opportunity of hearing to both the parties. 19. Records of both the courts below be sent back to the first appellate court forthwith. 20. The parties are directed to appear before the first appellate court on 10.04.2014. No order as to costs. Appeal allowed.