K. A. SWAMI, J. ( 1 ) AT the stage of admission, the respondents are served. They have put in appearance through a counsel. The records of the courts below are also received. The appeal involves a short substantial question of law. Therefore, it is admitted and it is heard for final disposal. ( 2 ) THE substantial question of law that arises for consideration is as to "whether the lower appellate court, in the absence of the counsel for the appellants and in the presence of one of the appellants, could have decided the appeal on merits. " ( 3 ) THE records reveal that on 26-7-1988, the appeal was posted for hearing. On that day, a representation was made on behalf of the learned counsel appearing for the appellants for time on the ground that the learned counsel for the appellants was admitted to the hospital for treatment. On this representation, the lower appellate court adjourned the hearing of the appeal to 28-9-1988. On 28-9-1988, appellant No. 1 was personally present. The counsel for the appellants was not present. The counsel for the respondents was present. The court heard the arguments and delivered the judgment on 29-9-1988 dismissing the appeal with costs on merits. ( 4 ) THE order sheet does not reveal that appellant No. 1, in spite of the absence of his counsel, represented to the court that he was ready to argue the appeal nor it reveals that appellant No. 1 argued the appeal. As far as appellants nos. 2 to 4 are concerned, they were not present. Appellants' counsel was also not present. Under these circumstances, whether the lower appellate court was justified in hearing the appeal or whether it should have dismissed the appeal for default. Sub-rule (1) of Rule 17 or Order 41 of the C. P. Code states that where on the day fixed or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed. Explanation to sub-rule (1) further states that nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. No doubt in the instant case, one of the appellants did appear. Explanation to sub-rule (1) further states that nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. No doubt in the instant case, one of the appellants did appear. But the fact remains that the appellants were represented by a counsel and the counsel was absent. This is a case in which all the appellants did not appear before the court on 28-9-1988 and their counsel also did not appear. Only appellant No. 1 appeared. Neither the order sheet nor the judgment of the lower appellate court reveals that appellant No. 1 was authorised to represent the other appellants or he agreed to argue the appeal. Thus the lower appellate court has heard the respondents' counsel and passed the judgment on merits on 29-9-1988. The appeal could not have been heard in so far it related to the 1st appellant only. As such in the absence of other appellants, or their counsel, the appeal could not have been heard and decided on merits. The explanation to sub-rule (1) of Rule 17 of Order 41 of C. P, Code was attracted to the case on hand. Therefore, the appeal should not have been dismissed on merits. The rules of procedure prescribed by the Code of Civil Procedure are to be interpreted to advance and further the interests of justice and not to defeat the substdntive rights of the porties. In spite of the fact that one of the appellants, who was a lady, appeared, in the absence of other appellants or their counsel, the appellants should not have been called upon to argue the appeal. The course adopted by the lower appellate court virtually amounted to depriving the right of hearing to the appellants and deciding the appeal ex parte. It is because of this, the explanation to sub-rule (1) of Rule 17 of Order 41 specifically states that "nothing in this sub-rule shall be construed as empowering that court to dismiss the appeal on merits. " ( 5 ) THE learned counsel for the appellants has placed reliance on a decision of the Supreme Court in Thakur Sukhpsl singh v Thakur Kalyan Singh and another (A. I. R. 1963 S. C. 146 ). " ( 5 ) THE learned counsel for the appellants has placed reliance on a decision of the Supreme Court in Thakur Sukhpsl singh v Thakur Kalyan Singh and another (A. I. R. 1963 S. C. 146 ). In that case, the Supreme Court considered the question as to whether the appellate court was bound to decide the appeal on merits on the basis of the material on record when the appellant appeared at the hearing but did not address the court. In that case, the appellate court dismissed the appeal for default. The Supreme Court upheld the order dismissing the appeal for default. It held that it was a matter within the discretion of the appellate court to allow an adjournment and such a discretionary order was ordinarily not a matter for consideration of the Supreme Court in an appeal filed under Article 136 of the Constitution. Accordingly, the Special Leave petition was dismissed. Das Gupta J, in his differring judgment observed thus : "24. It appears to me that when a counsel engaged by a party refused to address the court on behalf of his client, it is next to impossible for a client to engage another counsel on the spot to argue the case and ordinarily, impossible for the counsel thus engaged to address the court then and there. It is not also reasonable, in my opinion, to expect that a lay client should be able to argue his appeal. To aske the appellant personally in circumstances like these, to argue the appeal is to asked for the impossible. It appears to me to be neither fair nor just that when a counsel suddenly withdraws from a case, the lay client should be asked to argue the appeal himself. Justice, in my opinion, requires that in such a case, the client should be given some time- however short -to engage a counsel. 25. I am constrained to think that the action of the High Court in refusing the appellant's prayer for time to engage a counsel and to call on him to argue the case himself was not in the interest of justice. " these observations apply to the facts of the case. ( 6 ) IN the instant case, as already pointed out, the appeal ought not to have been dismissed on merits. " these observations apply to the facts of the case. ( 6 ) IN the instant case, as already pointed out, the appeal ought not to have been dismissed on merits. Therefore, the view expressed in the majority judgment of the Supreme Court in Thakur Sukhpal singh's case is not applicable to the case on hand, because in the instant case, the appeal was not dismissed for default but it was decided on merits in the absence of the counsel for the appellants. ( 7 ) FOR the reasons stated above, it is held that the lower appellate court was not justified in hearing the appeal on merits and deciding the same on merits. Accordingly, the appeal is allowed. The judgment and decree of the lower appellate court are set aside. The case is remitted to the lower appellate court with a direction to hear and decide the same in accordance with law within 4 months from the date of receipt of the records. Parties are directed to appear before the lower appellate court on 2-9-1989. No notice need be sent by the lower appellate court to the parties In the circumstances of the case, there will be no order as to costs. ( 8 ) REFUND the court fee paid on the memorandum of Appeal. --- *** --- .