JUDGMENT : Prakash Gupta, J. 1. The present second appeal has been filed under Section 100 of CPC against the decree and judgment passed by Additional District Judge No. 3, Jaipur Metropolitan, Jaipur in Civil Regular Appeal No. 29/009 dated 24.05.2011 (hereinafter referred to as First Appellate Court) whereby the learned First Appellate Court dismissed the appeal filed by the appellant-plaintiff and confirmed the judgment and decree passed by Civil Judge Junior Division, Jaipur City (West), Jaipur dated 16.09.2009 in Civil Suit No. 124/2005. 2. Brief facts giving rise to this appeal are that the plaintiff-appellant and proforma respondent No. 3 filed a civil suit for permanent and mandatory injunction against the defendant-respondents No. 1 & 2 wherein it was stated that late Shri Shankarnath Gupta father of the appellant along with his wife Nirmala Devi-defendant-respondent No. 2 opened a locker bearing No. 1807 in their names. 3. The said locker was operated from time to time by late Shri Shankernath Gupta and Nirmala Devi. After some time, a dispute arose between them. Consequently, late Shri Shankernath Gupta directed the defendant No. 1 that the locker should not be allowed to be opened by his wife Nirmla Devi without his consent. Since then the locker stands closed. 4. It is further stated that Shankernath Gupta, during his life time, bequeathed his property by way of a Will dated 03.01.2003. As per the said Will, the plaintiffs were made entitled to movable and immovable property of late Shri Shankernath Gupta, who died on 26.08.2005. 5. It is further pleaded that plaintiffs lodged a protest that Smt. Nirmala Devi-defendant No. 2 was bent upon operating the locker on the ground that she succeeded to the property of her husband. 6. The said suit was resisted by the defendant Nirmala Devi by filing written statement wherein she stated that she is entitled to open the locker on the basis of the property being her Stridhan and that she was only the survival party. The trial court framed as many as three issues. No evidence was produced by the plaintiffs. The defendant also not produced any evidence in rebuttal of the pleadings. 7. The learned trial court, after hearing both the parties, dismissed the suit of the plaintiffs vide judgment and decree dated 16.09.2009. 8. The trial court framed as many as three issues. No evidence was produced by the plaintiffs. The defendant also not produced any evidence in rebuttal of the pleadings. 7. The learned trial court, after hearing both the parties, dismissed the suit of the plaintiffs vide judgment and decree dated 16.09.2009. 8. Feeling aggrieved by the said judgment and decree, the plaintiffs filed first appeal before the First Appellate Court which was dismissed by the impugned judgment and decree dated 24.05.2011. 9. Hence, this second appeal. 10. It is submitted by the learned counsel for the appellant that admittedly none had appeared on behalf of the appellant before the First Appellate Court on the date of hearing. In view of this fact, the learned first appellate court could only be proceeded as provided in Order 41, Rule 17 (1) of the CPC and the appeal could not have been decided on merits in the absence of the plaintiff/appellant. The judgment passed by the learned first appellate court is per-se illegal and liable to be set aside and matter should be remanded back to the trial court for deciding it afresh. 11. Learned counsel for the respondent has opposed the appeal. 12. Having regard to the submission made by the learned counsel for the parties and after perusal of the record, it is revealed that the first appeal has been decided by the learned First Appellate Court on merits in absence of the appellant-plaintiff but the same cannot be decided in absence of the appellant-plaintiff or her counsel. In view of Order 41, Rule 17 (1) which reads as under:- "(i) 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. (Emphasis supplied by me) (ii) Hearing appeal ex-parte - Where the appellant appears and the respondent does not appear the appeal shall be heard ex-parte." 13. Explanation - Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. (Emphasis supplied by me) (ii) Hearing appeal ex-parte - Where the appellant appears and the respondent does not appear the appeal shall be heard ex-parte." 13. The explanation to sub-rule (1) of Rule 17 Order 41 CPC clearly provides that if the appellant does not appear when the appeal is called for hearing then, the only option left with the court to dismiss the appeal, in default and the same cannot be decided on merits. 14. In this regard, Hon'ble Apex Court in the case of Ghanshyam Das Gupta vs. Makhan Lal, 2012 (8) SCC 745 , has observed as under:- "7. Rule 17(1) of Order 41 deals with the dismissal of appeal for appellant's default. The above mentioned 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 no body had appeared for the appellant. 8. Prior to 1976, conflicting views were expressed by different High Courts in the country as to the purport and meaning of sub-rule (1) of Rule 17 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 Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for 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, Explanation to sub-rule (1) of Rule 17 Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 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." 15. In view of the above discussions, this appeal is allowed and judgment and decree dated 24.05.2011 is set aside, and the matter is remanded back to the first appellate court for its fresh disposal in accordance with law, after giving opportunity of hearing of both the parties. Both the parties are directed to remain present in the Appellate Court on 10.04.2017.