Counsel lacks authority to withdraw an appeal without client's express instructions; client consent is essential for legal representation.

Headnote:(A) Civil Procedure Code, 1908 - Section 151 - Revision petition challenging dismissal of appeal as withdrawn and subsequent restoration application - Counsel's statement to withdraw appeal without instructions from petitioner constitutes ineffective assistance - Court emphasizes the importance of client consent in withdrawal of legal actions. (Paras 7-11)

Facts of the case:
The petitioner initially filed a suit seeking a declaration against a penalty assessed at Rs.15,55,657/-. The appeal was dismissed as withdrawn based on counsel's statement, which was claimed to be made without instructions from the petitioner. (Paras 4-6)

Findings of Court:
The court found that the counsel had no authority to withdraw the appeal without the client's consent, emphasizing the need for proper client-instructed legal representation. (Paras 10-11)

Issues: The primary issue was whether the counsel had the authority to withdraw the appeal without the express instructions of the petitioner. (Paras 7-10)

Ratio Decidendi: The court ruled that a lawyer cannot bind their client by making a statement that undermines the client's legal rights without proper authority, and that justice should prevail over technicalities. (Paras 10-11)

Result: The impugned order was set aside, and the appeal was restored. (Paras 12-13)

Judgment

Mrs. Archana Puri, J.

Challenge in the present revision petition is to the order dated 25.05.2016 (Annexure P-1), passed by learned lower Appellate Court, whereby, an appeal of the petitioner against the judgment and decree dated 22.01.2016, was dismissed as withdraw. Besides the same, the petitioner also challenged the order dated 16.09.2016 (Annexure P-5) passed by learned lower Appellate Court, whereby, an application for restoration of the appeal has been dismissed.

2. In pursuance of the notice issued, the respondents made appearance through counsel.

3. Learned counsel for the parties heard.

4. The essential facts, as culled from the paper book, are as follows:-

That, initially, the petitioner (who was plaintiff before learned Court below) had filed a suit against the respondents (who were defendants before learned Court below), thereby, seeking declaration qua the legality and validity of the checking report and subsequent memo, as detailed therein, by way of which, a penalty of Rs.15,55,657/- had been assessed. The copy of the plaint is Annexure P-3. The said suit was dismissed vide judgment and decree dated 22.01.2016, copy whereof is Annexure P-6. Feeling aggrieved by the aforesaid judgment and decree, the petitioner-plaintiff had filed the appeal. During the pendency of the appeal, on 25.05.2016, learned counsel making appearance on behalf of the petitioner-appellant, had made a statement, which reads as under:-

“Stated that I do not want to proceed further with this appeal. Withdraws the same. Be consigned to the record room.”

5. Thus, the appeal was dismissed. However, feeling aggrieved by the aforesaid order of dismissal of the appeal, in this manner, the petitioner had filed an application for restoration of the appeal and the same was also dismissed vide order dated 16.09.2016, copy whereof is Annexure P-3.

6. Feeling aggrieved by the order of dismissal of the application for restoration of the appeal, the petitioner had filed the present revision petition.

7. At the very outset, it is submitted by learned counsel for the petitioner that in fact, the counsel making appearance on behalf of the petitioner-appellant before learned lower Appellate Court, had erroneously made the statement for withdrawal of the appeal, though, there were no instructions, at the behest of the petitioner-appellant. Rather, withdrawal, as such, was made by learned counsel, goes against the express instructions of the petitioner.

8. In the given circumstances, it is submitted that the counsel, as such, had transgressed the authority, which was given to him, to pursue the appeal. As such, a prayer has been made for acceptance of the revision petition and to restore the appeal in question.

9. On the other hand, learned counsel for the respondents has assiduously resisted the claim of the petitioner. He submits that in fact, by way of filing of the power of attorney, in favour of the counsel, there was an implied authority extended to the advocate concerned, to withdraw, compromise or for the disposal of the case on merits. In the given circumstances, it is submitted that learned lawyer had very rightly withdrawn the appeal, by making statement before the Court and in these circumstances, it was only at the behest of the statement, so made, that the appeal was withdrawn. In such circumstances, no case is made out for restoration of the appeal. As such, the order qua dismissal of the restoration application, has been correctly passed by learned lower Appellate Court.

10. As already reproduced aforesaid, the appeal was withdrawn by the counsel by making statement that he does not want to proceed further with the appeal. In the said statement, he had not stated about any such instructions, having received from the petitioner, who was appellant before learned lower Appellate Court. A lawyer generally has no implied or apparent authority to make an admission or statement, which would directly surrender or conclude the substantial legal rights of the

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