IMPORTANT POINT
Appeal from Original Decree – Explanation to Order XLI Rule 17 CPC also applies in cases where counsel for appellant, though physically present in Court when appeal is called on for hearing, refuses to argue appeal or for any other reason is not able to address Court.

JUDGMENT

Salil Kumar Rai, J.—Heard the counsel for the appellant and the counsel for the respondents.

2. The present Second Appeal has been filed against the judgment and decree dated 23.9.2015 passed by the Special Jude (Prevention of Corruption Act), Court No. 2/Additional District Judge, Lucknow (hereinafter in short referred to as ‘lower appellate Court’) dismissing the Regular Civil Appeal No.5000248 of 2013 (Janki Prasad vs. Sanjay Kumar and others) filed by the appellant. The records of the case indicate that the appeal has not yet been admitted for final hearing. By order dated 4.12.2015, the records of the case were summoned and have been received by this Court. In the circumstances, with the consent of the counsel for the parties, the Court proceeded to hear the present Second Appeal on admission and also for final hearing.

3. The facts relevant for the decision of the Second Appeal are that the respondents instituted Original Suit No. 36 of 2010 praying for a decree of permanent prohibitory injunction restraining the appellant from interfering in their peaceful possession over the suit-property. The respondents were the plaintiffs in the Suit and the appellant was the defendant in the Suit. The Trial Court i.e., the Additional Civil Judge (Junior Division), Court No. 35, District Lucknow vide its judgment and decree dated 29.8.2013 decreed Original Suit No. 36 of 2010. Against the judgment and decree dated 29.8.2013 passed by the Trial Court, the defendant-appellant filed Regular Civil Appeal No. 5000248 of 2015. The records of the lower appellate Court show that by order dated 18.8.2015 passed by the District Judge, Lucknow the case was transferred to the Special Judge (Prevention of Corruption Act), Court No. 2/Additional District Judge, Lucknow and the same was received by the said Court on 25.8.2015. The appeal was called out for hearing on 8.9.2015 on which date the hearing of the appeal was adjourned on the request of the counsel for the appellant and 15.9.2015 was fixed for hearing. On 15.9.2015, the lower appellant Court recorded, on its order-sheet, that the counsel for the parties were present but despite repeated requests they were not arguing the case and the judgment in the appeal was reserved to be delivered on 23.9.2015. By order dated 15.9.2015, the lower appellate Court also permitted the parties to argue the case on any date till two days before the pronouncement of judgment. The order-sheet does not show that the case was argued by the parties as permitted by order dated 15.9.2015. Vide its judgment dated 23.9.2015, the lower appellate Court dismissed the appeal on merits. In its judgment dated 23.9.2015 also the lower appellate Court has recited the fact that the 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. The judgment also recites the fact that the records of the Trial Court had been received by the lower appellate Court and the same were perused by the lower appellate Court.

4. The lower appellate Court framed point for determination in appeal and after considering the appeal on merits held against the appellant. In its impugned judgment, the lower appellate Court has extensively referred to the evidence and pleadings of the parties filed in the Trial Court.

5. The following substantial question of law arises in the present appeal and the appeal was heard on the said question of law:

“Whether the Explanation to Order XLI Rule 17 CPC would apply in a case where, when the appeal is called out for hearing by the appellate Court, the counsel for the appellant though physically present in the Court, refuses to argue the same for any reason and whether in such circumstances, the appellate Court has the power to decide the appeal on merits after considering the records of the case?”

6. It was argued by the counsel for the appellant that the recital dated 15.9.2015 in the order-sheet of the appeal and in the