Appeal taken up in the absence of counsel cannot be dismissed on merits but on default of appearance
What should be the fate of proceedings in the absence of counsel – should the proceedings (Appeal) be decided on merits in such circumstances or should be dismissed in default – prescribed as permissible course of action in Order 41 Rule 17 of the Code of Civil Procedure, 1908 (CPC).
The fate of the present case though went against the Appellant for failing to give sufficient causes for non appearance, on the law referred as above, it was held that if an appeal is dismissed in default, party aggrieved can move an application indicating sufficient causes that prevented the party aggrieved from appearance when the matter was called for hearing or even where appeal was heard in the absence of aggrieved party and ex-party order was passed. Appeal can be heard on merits if the other party (Respondent) does not appear. Where the Appellant fails to appear, the appeal has to be dismissed in default and not on the merits of the case.
Harbans Pershad Jaiswal (D) by Lrs. vs. Urmilla Devi Jaiswal (D) by Lrs.