IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 CRP.NO. 421 OF 2010() -------------------------------- AGAINST THE ORDER IN IA.638/2009 IN AS.152/2003 OF ADDL.DISTRICT COURT-I,MAVELIKKARA .................... REVN. PETITIONER(S): COUNTER PETITIONER ------------------------------------------------------------------ BHASKARAN, KANNOLIL VEEDU, PERINGALA MURI, KAYAMKULAM VILLAGE. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S): PETITIONER ---------------------------------------------- UDAYA BABU, UDAYABHAVANAM, PERINGALA, KAYAMKULAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.421 of 2010 -------------------------------------- Dated this the 10th day of August, 2010. ORDER Respondent in A.S.No.152 of 2003 of the court of learned Additional District Judge-I, Mavelikkara is the petitioner before me. He is challenging the order on I.A.No.638 of 2009 re-admitting appeal which was dismissed, as learned counsel for petitioner would contend on merit after hearing counsel for petitioner (respondent in the appeal) and after perusal of records of the case. Learned counsel contends that since dismissal of appeal was on merit as the judgment states re-admission of the appeal under Order XLI Rule 19 of the Code of Civil Procedure (for short, “the Code”) was not warranted. 2. I am afraid I cannot agree with the learned counsel. It is seen from a copy of judgment given to me by learned counsel for respondent (appellant in the appeal) that on counsel reporting no instruction respondent was called and recorded absent. There was no appearance for the respondent. Ofcourse, learned Additional District Judge observed that he has perused the lower court records and heard counsel for petitioner, found no merit in the appeal and dismissed the appeal. That does not make the decision in appeal one on merit as contemplated under law. Reason is that under Order XLI Rule 17(1) of the Code there is a power vested on the court to dismiss the appeal on default of appellant but, explanation to Rule 17 (1) states that nothing in that Sub-rule shall CRP No.421/2010 2 be construed as empowering the court to dismiss an appeal on the merits (in the absence of appellant). In otherwords when the appellant or counsel is absent, appellate court has power to dismiss the appeal for default but not on merit. Therefore, learned Additional District Judge could not have dismissed the appeal on merit in the absence of the respondent or counsel. Hence the disposal cannot be treated as one on merit. It is only a dismissal for default. Viewed in that line it was perfectly within the power of learned Additional District Judge to treat it as a dismissal for default and re-admit it. I find no irregularity or illegality in the order under challenge. Revision Petition is dismissed. I.A.No.2024 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks