Case Note & Summary
The dispute arose from a civil suit for declaration filed by the respondent, the elder brother of the petitioner, against the petitioner and three brothers, seeking a declaration that a decree dated May 4, 1990 was null and void. The Subordinate Judge, Hoshiarpur decreed the suit on September 29, 1993. The petitioner filed an appeal before the Additional District Judge, Hoshiarpur. On September 15, 1995, the petitioner's counsel made a statement that the petitioner did not intend to proceed with the appeal, and the appeal was dismissed as withdrawn. The petitioner challenged this order in Civil Revision No. 4233 of 1995 before the Punjab and Haryana High Court, which confirmed the dismissal on July 19, 1996. The petitioner then filed a special leave petition before the Supreme Court. The core legal issue was whether the counsel for the appellant had authority to withdraw the appeal, and whether an appellate court, after admitting an appeal under Order XLI Rule 9 CPC, could dismiss it as withdrawn without deciding the merits under Rule 11. The petitioner contended that the counsel was not authorized to withdraw the appeal and that the court, after admitting the appeal, had no power to dismiss it as withdrawn and was obliged to decide the matter on merits. The respondent defended the withdrawal and the lower courts' orders. The Supreme Court rejected the petitioner's contentions. It held that under Order III Rule 4 CPC, counsel continues on record until the proceedings in the suit are duly terminated, and therefore has power to make a statement on instructions from the party to withdraw the appeal. The Court further observed that Order XXIII Rule 1(1) and (4) CPC gives a party the power to abandon a claim, and by operation of Section 107(2) CPC, this applies equally to appeals, giving the appellate court co-extensive power to permit the appellant to give up the appeal. Consequently, even though the appeal was admitted under Order XLI Rule 9, the court necessarily has the power to dismiss the appeal as withdrawn without going into the merits. The Court added that if the counsel had not acted in the interest of the party or against instructions, the remedy lies elsewhere, and the procedure adopted by the lower court was consistent with the CPC. Accordingly, the Supreme Court found no illegality in the orders passed by the Additional District Judge and confirmed by the High Court, and dismissed the special leave petition, granting liberty to the petitioner to proceed according to law.
Headnote
A) Civil Procedure - Authority of Counsel - Order III Rule 4 of Code of Civil Procedure, 1908 - Counsel continues on record until termination of proceedings and has power to withdraw appeal on instructions from party - Petitioner contended counsel lacked authorization; Court held counsel had authority; if counsel acted against interest, remedy lies elsewhere - Held that action taken by counsel consistent with Order III Rule 4 CPC. (Paras not mentioned) B) Civil Procedure - Withdrawal and Abandonment of Appeal - Section 107(2) and Order XXIII Rules 1(1), 1(4) of Code of Civil Procedure, 1908 - Party may abandon claim; applies to appeals, giving appellate court co-extensive power to permit giving up appeal - Court held appellate court can permit withdrawal without deciding merits - Held that dismissal as withdrawn permissible. (Paras not mentioned) C) Civil Procedure - Dismissal of Admitted Appeal - Order XLI Rules 9 and 11 of Code of Civil Procedure, 1908 - Court has power to dismiss appeal as withdrawn without merits - Court held High Court correctly confirmed appellate order; no illegality - Held special leave petition dismissed with liberty to proceed according to law. (Paras not mentioned)
Issue of Consideration
Whether counsel for the appellant had authority to withdraw the appeal; and whether an appellate court, after admitting an appeal, could dismiss it as withdrawn without deciding the case on merits.
Final Decision
Special leave petition dismissed; withdrawal of appeal upheld; petitioner given liberty to proceed according to law.
Law Points
- Order III Rule 4 CPC empowers counsel to continue on record until termination of proceedings
- counsel can make statement to withdraw appeal on instructions
- Order XXIII Rule 1(1) and (4) CPC permit abandonment of claim
- Section 107(2) CPC makes these powers applicable to appeals
- appellate court has co-extensive power to permit appellant to give up appeal
- admitted appeal can be dismissed as withdrawn without deciding merits under Order XLI Rule 9 and Rule 11
- remedy for counsel acting against interest lies elsewhere
