Merits dismissal in default appeal exceeded jurisdiction where counsel lacked instructions to argue and sought only adjournment.

Where an appellant is effectively unrepresented because the vakil present has only instructions to seek an adjournment and cannot argue the appeal, the proper course is to dismiss the appeal for default and preserve the statutory remedy of readmission. The court should not examine the merits in such a situation, as the change in the later Code was not meant to authorise a merits decision that would defeat that remedy and prejudice the appellant. On that basis, the Madras HC treated the subordinate judge's merits-based dismissal as beyond jurisdiction, set it aside as ultra vires, and directed restoration of the appeal for disposal according to law.

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Issues: Whether an appellate court may examine the merits of an appeal and dismiss it on that basis when the appellant is unrepresented in substance because the vakil present has only instructions to seek an adjournment and cannot argue the appeal, and whether such an order is without jurisdiction.

Analysis: The appellant was treated as unrepresented because the vakil present had no papers, no instructions to argue, and was only instructed to seek an adjournment. In such circumstances, the proper course under the Code was to dismiss the appeal for default and leave the appellant to the remedy of readmission, rather than to adjudicate the merits. The change in language from the earlier Code was not intended to authorize a merits decision in default situations, especially where doing so would deprive the appellant of the statutory remedy under the rule relating to readmission and create serious prejudice. The order made by the subordinate judge, having been founded on a consideration of the merits, was therefore beyond jurisdiction.

Conclusion: The order dismissing the appeal on the merits was set aside as ultra vires, and the appeal was directed to be restored and disposed of according to law.

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