ARIJIT PASAYAT, J. ( 1 ) THIS appeal is by one of the appellants, before the lower appellate court, whose application under Order 41, Rule19, Code of Civil Procedure, 1908 (in short 'the Code') to restore Title Appeal No. 43 / 97 of 1982 /1981 was dismissed by the learned Second Additional District Judge, Puri. ( 2 ) THE background facts are that the appeal was posted to 17-7-1985 when the lawyer for the appellants filed a petition for adjournment on the ground that a petition for transfer of the case from the court of the learned Second Additional District Judge, Puri was pending. The petition was rejected and the appeal was dismissed as the Advocate did not argue the matter. A petition for restoration of the appeal was filed and the same was rejected on the ground that when the matter was taken up, the lawyer for the appellant did not address the Court and it was sufficient for the Court to pass an order of dismissal and it does not necessarily mean that the appeal was dismissed for default of appearance. It was held that in such circumstances, it is an order dismissing the appeal for default of proof and as such the order of dismissal is a decree; and hence no application for restoration lay. In these premises, the learned appellate Judge held that since the Advocate for the appellant was present and he expressed his unwillingness to argue the appeal, the dismissal was not one under Order 41, Rule 19 of the Code and the application for restoration was not maintainable. He also found that the reason that the appellant could not reach Puri due to his inability to catch the train was not a sufficient cause for non-appearance because he could have availed any other modes of transport to reach Puri and to engage another lawyer, if the lawyer who was already appearing was not willing to argue his appeal. ( 3 ) PURSUANT to notice the respondents have entered appearance through counsel, but when the matter was taken up for hearing none appeared to represent them. ( 4 ) THE learned counsel for the appellant submits that the course adopted by the lower appellate court and the reasons indicated are not sustainable in law. ( 3 ) PURSUANT to notice the respondents have entered appearance through counsel, but when the matter was taken up for hearing none appeared to represent them. ( 4 ) THE learned counsel for the appellant submits that the course adopted by the lower appellate court and the reasons indicated are not sustainable in law. ( 5 ) I find from the records of the lower appellate court that a petition for adjournment was filed on the ground of pendency of a transfer petition. The prayer was rejected on the ground that earlier time was granted for the purpose. The appellant was directed to get ready for hearing at once. One of the Advocates appearing for the appellant informed that the senior counsel who was to argue the matter was not willing to argue the appeal the appeal was dismissed with costs. On the previous date, i. e. , 22-6-1985 time was sought for to get an order relating to transfer of the appeal. On that date time was allowed till 17-7-1985. Again or self-same ground time was sought on 17-7-1985 and the order as indicated above was passed. ( 6 ) IN the aforesaid background, it is to be seen whether the petition under O. 41, R. 19 of the Code was maintainable. When the appeal is dismissed on merit, an application under O. 41, R. 19 is not maintainable. As observed by the Supreme Court in AIR 1981 SC 1400 , Rafiq v. Munshilal, under our present adversary legal system where the parties generally appear through their advocates should not be made to suffer for the inaction, deliberate omission or misdemeanour of their counsel. A party which has done everything within capacity to select a lawyer, brief him, pay the fees and trust him to do the rest of the things should not be made the victim, because it will be inequitable to make an innocent party to suffer injustice because his advocate defaulted. The reason indicated by the learned Appellate Judge that the party could have availed another mode of transport to come and engage another lawyer does not appear to be reasonable. It is not the case that the party had neglected deliberately. Therefore, dismissal of the appeal does not appear to be in order. The reason indicated by the learned Appellate Judge that the party could have availed another mode of transport to come and engage another lawyer does not appear to be reasonable. It is not the case that the party had neglected deliberately. Therefore, dismissal of the appeal does not appear to be in order. There can be no dispute that the general proposition that the appellate court is not bound to decide an appeal on merits on the basis of the material on record, when the appellant appears at the hearing but does not address the Court. It can dismiss the appeal for default. There was some amount of conflict of decisions on the question whether, if the appellant does not appear, the appellate Court can dispose of the appeal on the merits. The Allahabad High Court had held that a decision on the merits is permissible. But the other High Courts took a different view. To set at rest the above conflict, by the 1976 Amendment Act of the Code, an explanation has been added to sub-rule (1) of Rule 17, which provides that dismissal of an appeal on merits would not be permissible. The sub-rule provides that if 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. Rule 19 provides that where an appeal is dismissed under R. 17, the appellant may apply to the appellate Court for the readmission of the appeal; and on the appellate Court being satisfied that there was sufficient cause which prevented the party from appearing when the appeal was called on for hearing, shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. When appellant is absent on the date the appeal is called for hearing, the appellate Court had no jurisdiction to dismiss the appeal on merits, it can either adjourn the appeal, or dismiss it for default so that the appellant gets an opportunity to show that his absence was for sufficient cause. The view of the Court below that the appeal was not dismissed in terms of Order 41, Rule 17, does not appear to be correct. The view of the Court below that the appeal was not dismissed in terms of Order 41, Rule 17, does not appear to be correct. There is no other provision which authorises for dismissal of an appeal, and in view of the fact that the explanation added to Rule 17 clearly indicates that the sub-rule (1) does not authorise dismissal on merits, the inevitable conclusion is that the appeal was dismissed for default. The observation of the Court below to the contrary are not sustainable. The cleavage in judicial opinion over Rule 17 (1) having been set at rest by introduction of the explanation the view of the Allahabad High. Court or which strong reliance has been placed by the court below does not appear to be reasonable The facts involved in AIR 1963 SC 146 Sukhpal Singh v. Kalyan Singh, are clearly distinguishable. That was a case where the appellant himself appeared and argued in Court and therefore, the Court held that the dismissal amounted to dismissal for default of proof and not for default of the appellant' appearance. The justifiability of refusal to adjourn was not considered, since the Court was dealing with a petition under Art. 135 of the Constitution of India. ( 7 ) IN view of the fact situation adverted to above, the view of the first appellate court I indefensible. Almost similar factual matrix was involved in AIR 1973 Patna 166 : Deo dutt Singh v. Ram Naresh Singh, AIR 1981 Jammu and Kashmir 30, Ghulam Qadir v. Sikander, where view similar to mine was taken. ( 8 ) IN the result, the impugned order is set aside, the appeal is allowed and title appeal No. 43/97 of 1982/1981 is restored to file of the learned Additional District Judge, Puri. He shall now adjudicate the appeal afresh after due notice to the parties and dispose of the same as expeditiously as feasible. No costs. Order accordingly.