ORDER : 1. The judgment and decree passed by the learned first appellate court on 27.05.2004 has been called in question in the present second appeal by the unsuccessful appellants. Suit of the plaintiff was decreed by the learned trial court on 27.05.1999 against as many as 17 defendants. All the appellants jointly preferred Title Appeal No. 47/1999 in the court of learned Civil Judge (Sr. Divn.) No. 2 at Guwahati and that appeal has been dismissed by the impugned decree on 27.05.2004 observing that the appellants failed to forward any argument in support of the grounds taken in Memo of Appeal. 2. The predecessor of the present respondent No. 1 along with respondent No. 2 instituted Title Suit No. 232/1985 in the court of learned Assistant District Judge No. 1 at Guwahati on 02.12.1985 praying for declaration that plaintiff No. 1 is Sebait and Pujari of plaintiff No. 2 (Sri Shankat Mochan Hanuman Mandir) and plaintiff No. 2 is the lawful owner of the suit land and properties and also for cancellation of trust deed No. 6602/1984 executed by defendant No. 1 in favour of defendants No. 1 to 10 with further declaration and confirmation of possession and alternatively for recovery of khas possession by evicting the defendants from the suit land. Plaintiffs stated that plaintiff No. 1 is the Sebait and Pujari of Sree Shankat Mochan Hanuman Mandir, the plaintiff No. 2 but defendant No. 1 claiming himself to be a trustee on the basis of trust deed 05.09.1946 and 29.04.1948 along with defendants No. 2 to 9 claimed to be the trustees of plaintiff No. 2. They also claimed that the trust was reconstituted vide deed No. 6602 dated 06.06.1984. The defendants No. 11 to 16 were really the tenants of the plaintiffs but they entered into collusion with the defendants No. 1 to 10 to grab the properties of the plaintiff No. 2. The suit land originally belonged to one Turi Ram Dukani who gifted the suit properties to the plaintiff No. 2 represented by plaintiff No. 1 and the plaintiff No. 1 accepted the gift. He installed a mandir of Lord Hanuman and became a Sebait and Pujari of the said mandir. The plaintiff No. 1 constructed the house before installing the idol of Lord Hanuman and he has been managing the affairs of the plaintiff No. 2 all along. He installed a mandir of Lord Hanuman and became a Sebait and Pujari of the said mandir. The plaintiff No. 1 constructed the house before installing the idol of Lord Hanuman and he has been managing the affairs of the plaintiff No. 2 all along. He has been performing daily puja and thereafter let out a part of the suit premises to defendants No. 12 to 17 to meet the daily expenses of the temple and has been realising rents from them. The defendants No. 1 to 11 influenced Turi Ram Dukani by making some misrepresentation and managed to get one deed of amendment and thus a trust was created by registered deed No. 973 dated 29.04.1948 and another deed of endowment was executed on 12.04.1949. Plaintiffs prayed for cancellation of the two deeds dated 29.04.1948 and 12.04.1949 by instituting title suit No. 11/1951 and the suit was decreed on 30.03.1953 declaring title of the plaintiffs. The plaintiff put the decree into execution and evicted the defendants including the present defendant No. 1 and regained possession of the suit property. The alleged trustees have no right, title and interest with respect to the property and so subsequent reconstitution of the trust is also invalid but the defendants took forcible possession of the land on 09.04.1985 in the absence of the plaintiff No. 1. The suit was, therefore, instituted for declaration of right, title and interest of the plaintiffs and for eviction of the defendants from the suit land. 3. On being summoned, the defendants appeared and submitted written statement denying the case of the plaintiffs. The learned trial court framed following 8 issues on perusal of the pleadings of the parties:- 1. Whether the suit is maintainable? 2. Whether there is any cause of action for the suit? 3. Whether the suit is barred by the principle of waiver, estoppels and acquiescence? 4. Whether the plaintiff is bad for non-joinder and mis-joinder of necessary parties? 5. Whether the plaintiffs have right, title and interest over the suit land? 6. Whether the deed No. 6602/84 executed by the defendant No. 1 in favour of the defendant No. 2 to 11 is illegal in operative collusive and liable to cancel? 7. Whether the defendants No. 12 to 17 are the tenants under the plaintiff? 8. Whether the plaintiffs are entitled to get relief or reliefs as prayed for? 4. 6. Whether the deed No. 6602/84 executed by the defendant No. 1 in favour of the defendant No. 2 to 11 is illegal in operative collusive and liable to cancel? 7. Whether the defendants No. 12 to 17 are the tenants under the plaintiff? 8. Whether the plaintiffs are entitled to get relief or reliefs as prayed for? 4. In course of trial, plaintiff examined 3 (three) witnesses while defendants examined 2 (two) witnesses. Both sides exhibited documentary evidence in support of their respective case. It is stated that during pendency of the suit, defendants No. 1, 5 and 12 died but their legal heirs were not brought on record. 5. The learned trial court after considering the materials available on record, decreed the suit on 27.05.1999. Aggrieved, the defendants preferred title appeal No. 47/1999 in the court of learned Civil Judge (Sr. Divn.) No. 2 at Guwahati. During pendency of the appeal, appellant No. 10 Maya Shankar Bharati died but his legal heirs were not brought on record by way of substitution. The appellants filed an application before the learned first appellate court on 27.05.2004 praying for time to take necessary steps for substitution but the learned first appellate court rejected the application holding that the appellants were aware about the death of the appellant No. 10 on 19.01.2003 itself and there was no ground or scope to allow further time. Consequently, prayer for adjournment was rejected with a cost of Rs. 200/-. After rejecting the application for adjournment, the learned first appellate court did not enter into any discussion as to whether the entire appeal had abated owing to death of appellant No. 10, but dismissed the appeal with the observation that no argument was put forward by the appellants in support of the grounds taken in the Memo of Appeal. The penultimate paragraph which is the only observation made while dismissing the appeal on merit is quoted below for ready reference:- “For the reasons stated above, the petition No. 1341/04 has no ground at all and the same stands rejected with cost of Rs. 200/- and in view of failure of the appellants to forward any argument in support of the grounds taken in the Memo of Appeal the appeal is also dismissed with costs throughout.” 6. This order dismissing the first appeal has been called in question in the present second appeal by the unsuccessful appellants. 200/- and in view of failure of the appellants to forward any argument in support of the grounds taken in the Memo of Appeal the appeal is also dismissed with costs throughout.” 6. This order dismissing the first appeal has been called in question in the present second appeal by the unsuccessful appellants. The second appeal was admitted on 03.01.2005 and the following two substantial questions of law were framed:- (i) Whether the judgment and decree passed by the learned Trial Court is nullity in view of non-substitution of the legal heirs of the defendant Nos. 1, 5 and 12? (ii) The appellant may raise any other substantial question of law at the time of hearing? 7. I have heard Mr. SP Roy, learned counsel for the appellants and Ms. N Baruah on behalf of Ms. MD Choudhury, learned counsel for the respondents. I have perused the materials available on record. 8. After hearing the learned counsel for the parties at length it appears that the crux of the appeal hinges on the question as to whether the learned first appellate court committed error in not deciding the appeal after the appellants failed to put any argument in support of the grounds taken in the Memo of Appeal. It is not the case of the either side that no one had put up appearance on behalf of the appellants when the appeal was taken up for disposal. Even the impugned order dated 27.05.2004 itself shows that an application for adjournment was moved on behalf of the appellants and the same was rejected with a cost of Rs. 200/-. Accordingly, the following additional substantial question of law is framed:- Whether the impugned judgment is vitiated for violation of the provision of Explanation to Order XLI Rule 17 of the Code of Civil Procedure? 9. Both the learned counsel are heard on the additional substantial question of law. 10. Order XLI Rule 17 provides that where on the day fixed, or on any other day, to which the hearing of an appeal 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. 10. Order XLI Rule 17 provides that where on the day fixed, or on any other day, to which the hearing of an appeal 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. An explanation was added to this rule by Act 104 of 1976 which is quoted below for ready reference:- “Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.” 11. A perusal of Order XLI Rule 17 including its explanation goes to show that if appellant fails to appear on a day fixed for hearing in that event, Court can dismiss the appeal but cannot enter into merit. An order of dismissal can be for default and remedy would lie under Rule 19 of the same Order. This position has further been clarified by clause 2 of the Rule 17 of the same Order which provides that where appellant appears and the respondent does not appear, the appeal shall be heard ex-parte. The sum total of the two sub clauses of Rule 17 shows that in case respondent does not appear, an appellate court can decide the appeal on merit ex parte against the respondent but if the appellant does not appear irrespective of whether the respondent appears or not, the appellate court cannot decide the appeal on merit. The only recourse open to the appellate court would be to dismiss the appeal for default. Here in this case, admittedly appellants appeared on the fateful day. The appellants made a prayer for adjournment for substituting legal heirs of deceased appellant No. 10. If the learned court would have considered the prayer and thereupon held that upon death of appellant No. 10 the whole appeal had abated in that event, the position would have been different and such an appeal in a given case may be dismissed in entirety on abatement. But this is not the position in the present case. Here, the learned first appellate court has not dismissed the appeal on abatement but has dismissed the appeal on failure of the appellant to put forward argument after being present in the Court. But this is not the position in the present case. Here, the learned first appellate court has not dismissed the appeal on abatement but has dismissed the appeal on failure of the appellant to put forward argument after being present in the Court. Since Rule 17 empowers the Court to dismiss an appeal only on non-appearance of the appellant and not otherwise, the learned first appellate court in the present case could not have dismissed the appeal under Rule 17 of Order XLI of the Code of Civil Procedure as the appellants were reported by counsel and he was present in court. The appellant being present, the learned court either could have allowed adjournment or could have decided the appeal on merit irrespective of whether the respondent had appeared or not. 12. Incidentally, in the case in hand, the impugned order has been passed by the learned first appellate court dismissing the appeal apparently on merit without entering into the merit of the case and so such dismissal is neither under Order XLI Rule 17 of the Code of Civil Procedure nor was it done on due exercise of jurisdiction under Section 96 of the Code. In short, the impugned judgment and decree is not a judgment and decree within the meaning of Order XLI Rule 31 of the Code of Civil Procedure. This is because having found that no argument has been put forward in support of the grounds alleged in the Memo of Appeal, the learned first appellate court ought to have considered the points for determination and thereupon to decide such point on the basis of the materials available on record. After all, first appellate court is the last court of fact and law and so, a judgment dismissing the appeal otherwise than under Rule 17 of Order XLI has to be on due consideration of the pleadings and evidence available on record. Admittedly, the same has not been done in the present case. The additional substantial question of law is accordingly decided in the affirmative and in favour of the appellants. Since the impugned judgment has been found to have been vitiated for jurisdictional error in terms of explanation to Order XLI Rule 17 of the Code of Civil Procedure, there is no necessity for deciding the substantial questions of law No. 1 and 2 referred to above. The appeal stands allowed. Since the impugned judgment has been found to have been vitiated for jurisdictional error in terms of explanation to Order XLI Rule 17 of the Code of Civil Procedure, there is no necessity for deciding the substantial questions of law No. 1 and 2 referred to above. The appeal stands allowed. The impugned judgment and decree is set aside. The matter is remanded to the learned first appellate court for deciding the same on merit including the question of abatement. 13. No order as to costs. 14. Send down the LCRs immediately.