Code of Civil Procedure, 1908:
Or.XLI, r.19 and Or.XLIII, r.1(t) – Dismissal in default – Restoration – Dismissal of first appeal filed by the Development Authority for non-appearance of the counsel – Application filed seeking recall of the order and restoration of the appeal – Dismissal by the appellate court – Writ petition by the High Court u/Art. 227 also dismissed – On appeal, held: An order of refusal to re-admit the appeal passed by the appellate court u/Or. XLI, r. 19 is made expressly appealable u/Or. XLIII, r. 1(t) to the High Court – Remedy of the appellant-Authority was to file an appeal in the High Court against the order u/Or. XLIII, r. 1 (t) – Appellant-Authority erred in filing the writ petition u/Article 227 against the order – Furthermore, the courts below should have seen that the first appeal is a valuable right of the appellant and, thus, the appellant-Authority was entitled for an opportunity to prosecute their appeal on merits – If the appellant’s advocate did not appear may be for myriad reasons, the court could have imposed some cost on them for restoration of their appeal to compensate the respondent – Application made by the appellant-Authority for recalling of the order, constitutes a sufficient cause within the meaning of Or. XLI, r. 19, and thus, is allowed, subject to payment of cost of Rs.10,000/- payable by the appellant-Authority to the respondent – Order of the High Court is set aside.
Allowing the appeal, the Court
HELD: 1.1 The first appeal filed by the appellant-Authority suffered dismissal in default because on that day none appeared for them when the appeal was called on for hearing. Such dismissal attracted the provisions of Order 41 Rule 19 of the Code of Civil Procedure, 1908 and, therefore, the appeal could be re-admitted for hearing at the instance of the appellant-Authority only by taking recourse to the provisions of Order 41 Rule 19 and subject to their making out a sufficient cause which prevented them from appearing when the appeal was called on for hearing. [Paras 13, 14][817-E, F]
1.2 An order of refusal to re-admit the appeal passed by the Appellate Court under Order 41 Rule 19 of the Code is made expressly appealable under Order 43 Rule 1(t) of the Code to the High Court. In this case, since the Appellate Court refused to re-admit the appeal and dismissed the application filed by the appellant-Authority, the remedy of the appellant-Authority was to file an appeal in the High Court against the order dated 29.06.2016 under Order 43 Rule 1 (t) of the Code. [Para 15][817-G]
1.3 The appellant-Authority instead of filing the appeal under Order 43 Rule 1(t) of the Code filed the writ petition under Article 227 of the Constitution against the order dated 29.06.2016. It was an error on the part of the appellant-Authority and the High Court should have declined to entertain the writ petition and instead either converted the writ petition into the appeal under Order 43 Rule 1(t) of the Code or permitted the appellant-Authority to withdraw the writ petition with a liberty to file an appeal under Order 43 Rule 1(t) of the Code, as the case may be, in its discretion. It was, however, not noticed and the High Court dismissed the writ petition on merits. [Para 16][817-H, 818-A-B]
1.4 The appeal lies under Order 43 Rule 1(t) of the Code to the High Court against the order dated 29.06.2016 passed by the Appellate Court which dismissed the application made under Order 41 Rule 19 of the Code. However, the High Court erred in dismissing the writ petition. The High Court should have allowed the writ petition and the appellant-Authority should have been given the indulgence of hearing of their appeal on merits. [Paras 17, 18][818-C-D]
1.5 The Courts below should have seen that the first appeal is a valuable right of the appellant and, therefore, the appellantAuthority was entitled for an opportunity to prosecute their appeal on merits. If the appellant’s advocate did not appear may be for myriad reasons, the Court could have imposed some cost on them for restoration of their appeal to compensate the respondent(plaintiff) instead of depriving them of their valuable right to prosecute the appeal on merits. The Courts while dealing with the cases of this nature should to do substantial justice to both the parties to the lis. Indeed, dismissal of the appeal in default and dismissal of the appeal on merits makes a difference. The former dismissal is behind the back of the litigant and latter dismissal is after hearing the litigant. The latter is always preferred than the former. [Para 22][819-C-E]
1.6 On perusal of the application made by the appellantAuthority for recalling of the order it is found that it constitutes a sufficient cause within the meaning of Or. 41 r. 19, and is thus, allowed, however, subject to payment of cost of Rs.10,000/payable by the appellant-Authority to the respondent(plaintiff). The impugned order is set aside. As a consequence, the application filed by the appellant is allowed. The first appeal is accordingly restored to its original number for its hearing on merits in accordance with law. [Para 23, 24][819-F-G]
Sangram Singh v. Election Tribunal, Kotah AIR 1955 SC 425 : 1955 SCR 1 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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