- In a recent case titled Janki Prasad vs. Sanjay Kumar and ors. the Hon’ble Allahabad HC has held that when an appeal has to be dismissed by the appellate court because the appellant, though present, refuses to argue the same, the dismissal cannot be on merits in view of the Explanation appended to Order 41, Rule 17 of CPC.
- The respondents- plaintiffs instituted a suit in 2010 praying for a permanent injunction restraining the appellant- defendant from interfering with their peaceful possession of the suit property. This suit was decreed in 2013 in their favour. The appellant- defendant filed a first appeal against this order which was dismissed on merits because the counsel for the parties, though present, refused to argue the same.
- It was for challenging this order that Janki Prasad (appellant) filed a second appeal before the HC.
- For understanding this, we have to refer to the explanation to Order 41 rule 17 CPC which states that the Appellate Court cannot dismiss the appeal on merits in cases in which on the day fixed, the appellant does not appear when the case is called for hearing.
- The Court, in light of this explanation, held that the above explanation also applies in cases when the counsel for the appellant, though present in the Court, refuses to argue the case or for any other reason is not able to address the Court. In these cases, the Appellate Court has no jurisdiction to decide the case on its merits.
- Consequently, the instant second appeal was allowed and the judgement and decree of the lower appellate Court was set aside.
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