[O. 41 R. 17(1) CPC] If Counsel Refuses To Argue Or Not Able To Address Court, Appeal Can't Be Dismissed On Merits: Allahabad HC

The Allahabad High Court recently ruled that when an appeal has to be dismissed by the appellate Court on account of the fact that the counsel for the appellant though physically present in the Court, refuses to argue the same for any reason, the dismissal can't be on merits in view of the Explanation to Order XLI Rule 17 CPC.

It may be noted that Explanation to Order XLI Rule 17 CPC states that the appellate Court can't dismiss the appeal on the merits in cases 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.

Agaisnt this backdrop, the Bench of Justice Salil Kumar Rai, while dealing with the Second Appeal of one Janki Prasad held the following:

"...the Explanation to Order XLI Rule 17 CPC also applies in cases where the counsel for the appellant, though physically present in the Court when the appeal is called on for hearing, refuses to argue the appeal or for any other reason is not able to address the Court and in such situations, the appellate Court has no jurisdiction to decide the appeal on merits."

The case in brief

The respondents (plaintiffs in the Suit) instituted an Original Suit in 2010 praying for a decree of permanent prohibitory injunction restraining the appellant (defendant in the Suit) from interfering in their peaceful possession over the suit-property.

The Court i.e., the Additional Civil Judge (Junior Division), Court No. 35, District Lucknow vide its judgment and decree, decreed Original Suit in August 2013

Against this judgment and decree, the defendant-appellant filed a Regular Civil Appeal. The case was transferred to the Special Judge (Prevention of Corruption Act)/Additional District Judge, Lucknow and in September 2015, the lower appellate Court dismissed the appeal on merits.

In one of its order sheets (September 15, 2015), the Court even noted that the counsel for the parties were present but despite repeated requests, they were not arguing the case.

In its judgment, the lower appellate Court noted that the fact that counsel for the parties were present on the date fixed for hearing of the case but despite repeated requests they did not argue the case.

Challenging the dismissal of the first appeal on merits, Janki Prasad (appellant) moved to the High court with his second appeal arguing that the lower appellate Court had no jurisdiction to decide the appeal on merits.

Contentions put forth

It was argued by the counsel for the appellant that the recital in the order-sheet of the appeal and in the judgment that the counsel for the parties had not argued the case despite repeated requests, amounts to a refusal by the counsel to argue the case and, in the circumstances, the lower appellate Court had no jurisdiction to decide the appeal on merits.

It was further argued that in light of the Explanation to Order XLI Rule 17 of the Code of Civil Procedure, 1908, in the circumstances of the case, the Court could have only dismissed the appeal in default.

It was also argued that the appearance of the counsel referred in Order XLI Rule 17 CPC means 'appearance to argue the appeal' and if the counsel for the appellant refuses to argue the case or does not argue the case, even though physically present in the Court when the case is called on for hearing, the appellate Court can consider and decide the appeal on merits.

Court's observations

For the purpose of deciding the second appeal, the Court focussed on the question - as to whether the Explanation to Order XLI Rule 17 (1) CPC would apply when the counsel for the appellant, even though physically present in the Court while the appeal is called on for hearing, either refuses or for any other reason, does not argue the appeal on merits.

Examining the same, the Court, at the outset, noted that there is no difference between the counsel for the appellant being not present in the Court when the case is called on for hearing and, even though physically present when the case is called on for hearing, but refusing to argue the appeal [as per Order XLI Rule 17 (1) CPC].

Therefore, the substantial question of law framed by the Court was decided in favor of the appellant as the Court held thus:

"...the Explanation to Order XLI Rule 17 CPC also applies in cases where the counsel for the appellant, though physically present in the Court when the appeal is called on for hearing, refuses to argue the appeal or for any other reason is not able to address the Court and in such situations, the appellate Court has no jurisdiction to decide the appeal on merits."

For the aforesaid reason, the Court concluded that the lower appellate Court, in the instant case, had exceeded its jurisdiction in deciding the appeal on merits vide its judgment dated 23.9.2015 and the appeal was allowed.

Consequently, allowing the instant Second Appeal, the judgment and decree of the lower appellate Court were set aside and the Regular Civil Appeal filed by the appellant is dismissed in default.

The appellant has been given the liberty to file an application for restoration of the said appeal before the lower appellate Court which, if filed, shall be decided by the lower appellate Court in accordance with the law.

Case title - Janki Prasad v. Sanjay Kumar And Ors
Case Citation: 2022 LiveLaw (AB) 7

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