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Where Counsels Refuse To Argue, Appeal Cannot Be Dismissed On Merits Case: Janki Prasad Vs Sanjay Kumar And Ors

Rupal Nemane ,
  11 January 2022       Share Bookmark

Court :
High Court of Allahabad
Brief :

Citation :
Civil Appeal No. 247 of 2015

Date of judgement:
24th December 2021

Justice Salil Kumar Rai

Appellant – Janki Prasad
Respondent – Sanjay Kumar and Ors


Being dissatisfied by the order passed by lower appellate Court, the appellant went to the High Court for setting aside the order where the appeal was allowed by the High Court. The key contention of the appellant was that when the counsel refuses to argue, the appellate Court cannot decide the case on merits.

Legal Provisions

  • Order XLI Rule 17 CPC- Dismissal of the appeal because of appellant’s default.


  • The respondents filed a suit in 2010 asking for a decree of permanent prohibitory injunction prohibiting the appellants from entering in their suit property.
  • This suit was decreed in August 2013 by the Additional civil Judge in Lucknow District.
  • This judgment was challenged by the appellant and on September 2015, the appeal was dismissed on merits by the lower appellate Court. It was noted by the Court that the counsel for the parties was not ready to argue the case even though they were present in the Court.
  • Challenging this the appellant “Janki Prasad” went to the High Court stating that the lower Court cannot decide the appeal on merits.
  • The counsel arguing for the appellants submitted that the fact that the parties' counsel had not argued the matter despite repeated requests is a refusal by the counsel to argue the case, and the lower appellate Court had no authority to resolve the appeal on the merits in these circumstances. It was also argued that as per Order XLI Rule 17 of the Code of Civil Procedure, 1980, in such circumstances, the Court should have dismissed the appeal in default.
  • The counsel for the respondents referring to Order XLI Rule 17 of the Code of Civil Procedure, 1980, argued that if the appellant's counsel refuses to argue the case or does not argue the case, even if physically present in Court when the case is called on for hearing, the appellate Court can consider and decide the appeal on the merits.


  • Whether Order XLI Rule 17 of the Code of Civil Procedure, 1980 can be applied here if the counsel is present in the Court but does not argues the case?

Judgment analysis

  • The appeal in this case was allowed.\
  • Rule 17 Order XLI of CPC talks about dismissal of the appeal because of appellant’s default. It states that –
  1. On any day when the hearing may be adjourned, the appellant fails to be present on calling for hearing, the Court may pass an order that the appeal has been dismissed.
  2. Hearing appeal ex parte- when the appellant is present and the respondent fails to be present the appeal will be heard ex parte.
  • The Court held that there is no difference whether the counsel is present in the Court while the time of hearing but not arguing the case and the counsel being absent in the Court because of some reason. The explanation of Order XLI Rule 17 of the Code of Civil Procedure, 1980 is applicable in both the cases.
  • The Court further submitted that the lower appellate Court in this case exceeded its jurisdiction while deciding the appeal on merits while passing the judgment.
  • Hence, the Regular Civil Appeal filed by the appellant in the lower Court was dismissed in default and the appellant was given liberty to restore his appeal before the lower Court which shall be decided by the lower appellate Court as per accordance of law.


In this case, the appellant filed a second appeal in the High Court being unsatisfied with the judgment of the lower Court and the High Court held that explanation to Order XLI Rule 17 CPC also applies in cases where the appellant's counsel, despite being physically present in Court when the appeal is called for hearing, refuses to argue the appeal or is unable to address the Court for any other reason, and the appellate Court has no jurisdiction to decide the appeal on the merits in such cases.

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