THE COMMISSIONER, MYSORE URBAN DEVELOPMENT AUTHORITY versus S.S. SARVESH on 5 February 2019

[2019] 2 S.C.R. 813

THE COMMISSIONER, MYSORE URBAN DEVELOPMENTAUTHORITY

v.

S.S. SARVESH

(Civil Appeal No. 1463 of 2019)

FEBRUARY 05, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

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 DevelopmentAuthority for non-appearance of the counsel – Application filedseeking recall of the order and restoration of the appeal – Dismissalby the appellate court – Writ petition by the High Court u/Art. 227also dismissed – On appeal, held: An order of refusal to re-admitthe appeal passed by the appellate court u/Or. XLI, r. 19 is madeexpressly appealable u/Or. XLIII, r. 1(t) to the High Court – Remedyof the appellant-Authority was to file an appeal in the High Courtagainst the order u/Or. XLIII, r. 1 (t) – Appellant-Authority erred infiling the writ petition u/Article 227 against the order – Furthermore,the courts below should have seen that the first appeal is a valuableright of the appellant and, thus, the appellant-Authority was entitledfor an opportunity to prosecute their appeal on merits – If theappellant’s advocate did not appear may be for myriad reasons,the court could have imposed some cost on them for restoration oftheir appeal to compensate the respondent – Application made bythe appellant-Authority for recalling of the order, constitutes asufficient cause within the meaning of Or. XLI, r. 19, and thus, isallowed, subject to payment of cost of Rs.10,000/- payable by theappellant-Authority to the respondent – Order of the High Court isset aside.

Allowing the appeal, the Court

HELD: 1.1 The first appeal filed by the appellant-Authoritysuffered dismissal in default because on that day none appearedfor them when the appeal was called on for hearing. Such dismissalattracted the provisions of Order 41 Rule 19 of the Code of Civil

813

A

B

C

D

E

F

G

H

AProcedure, 1908 and, therefore, the appeal could be re-admittedfor hearing at the instance of the appellant-Authority only by takingrecourse to the provisions of Order 41 Rule 19 and subject totheir making out a sufficient cause which prevented them fromappearing when the appeal was called on for hearing.[Paras 13, 14][817-E, F]B

1.2 An order of refusal to re-admit the appeal passed bythe Appellate Court under Order 41 Rule 19 of the Code is madeexpressly appealable under Order 43 Rule 1(t) of the Code tothe High Court. In this case, since the Appellate Court refusedCto re-admit the appeal and dismissed the application filed by theappellant-Authority, the remedy of the appellant-Authority wasto file an appeal in the High Court against the orderdated 29.06.2016 under Order 43 Rule 1 (t) of the Code.[Para 15][817-G]

D

D1.3 The appellant-Authority instead of filing the appealunder Order 43 Rule 1(t) of the Code filed the writ petition underArticle 227 of the Constitution against the order dated 29.06.2016.It was an error on the part of the appellant-Authority and theHigh Court should have declined to entertain the writ petitionEand instead either converted the writ petition into the appealunder Order 43 Rule 1(t) of the Code or permitted theappellant-Authority to withdraw the writ petition with a liberty tofile an appeal under Order 43 Rule 1(t) of the Code, as the casemay be, in its discretion. It was, however, not noticedFand 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 Codeto the High Court against the order dated 29.06.2016 passed bythe Appellate Court which dismissed the application made underOrder 41 Rule 19 of the Code. However, the High Court erredGin dismissing the writ petition. The High Court should haveallowed the writ petition and the appellant-Authority should havebeen 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 appealis a valuable right of the appellant and, therefore, the appellant-Authority was entitled for an opportunity to prosecute their appealon merits. If the appellant’s advocate did not appear may be formyriad reasons, the Court could have imposed some cost on themfor restoration of their appeal to compensate therespondent(plaintiff) instead of depriving them of their valuableright to prosecute the appeal on merits. The Courts while dealingwith the cases of this nature should to do substantial justice toboth the parties to the lis. Indeed, dismissal of the appeal in defaultand dismissal of the appeal on merits makes a difference. Theformer dismissal is behind the back of the litigant and latterdismissal is after hearing the litigant. The latter is always preferredthan the former. [Para 22][819-C-E]

1.6 On perusal of the application made by the appellant-Authority for recalling of the order it is found that it constitutes asufficient 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, theapplication filed by the appellant is allowed. The first appeal isaccordingly restored to its original number for its hearing onmerits in accordance with law. [Para 23, 24][819-F-G]

Sangram Singh v. Election Tribunal, Kotah AIR 1955SC 425 : 1955 SCR 1 – referred to.

Case Law Reference

1955 SCR 1referred toPara 19

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1463of 2019.

From the Judgment and Order dated 19.02.2018 of the High Courtof Karnataka at Bengaluru in W.P. No. 34313 of 2017.

Mahesh Thakur, Shailesh Madiyal, Sudhanshu Prakash,Mrs.Vipasha Singh, Advs. for the appellant.

Anand Sanjay M. Nuli, Dharm Singh, Suraj Kaushik, NandaKumar, M/s.Nuli & Nuli, Advs. for the respondent.

A

B

C

D

E

F

G

H

AThe Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is filed against the final judgment and order dated19.02.2018 passed by the High Court of Karnataka at Bengaluru in WritPetition No.34313 of 2017 whereby the High Court dismissed the writBpetition filed by the appellant herein.

3. In order to appreciate the short controversy involved in thisappeal, it is necessary to set out a few relevant facts.

4. The appellant-Mysore Development Authority(in short, “theAuthority”) is the defendant whereas the respondent is the plaintiff inCthe suit out of which this appeal arises.

5. The respondent filed a civil suit (O.S. No.685/2006) against theappellant-Authority in the Court of Principal Senior Civil Judge and SmallCauses Court, Mysuru. The suit was for declaration of title and permanentinjunction in relation to the land bearing No. 2442 situated in Vijaynagara,2[nd] stage, Devaraja Mohalla, Mysuru (hereinafter referred to as ‘suitDland’).

6. The appellant-Authority, on being served filed their writtenstatement. The parties adduced their evidence. By judgment/decree dated20.03.2012, the Trial Court decreed the respondent’s suit and passed adecree against the appellant-Authority in relation to the suit land.

E

7. The appellant-Authority felt aggrieved and filed first appeal(R.A.No.370/2012) under Section 96 of the Code of Civil Procedure,1908 (hereinafter referred to as “the Code”) in the Court of PrincipalDistrict and Sessions Judge, Mysuru. This appeal was listed for hearingon 25.04.2014. On that day, the appellant’s counsel did not appear whenFthe appeal was called on for hearing and, therefore, the Appellate Courtdismissed the appeal in default.

8. The appellant-Authority, therefore, filed an application beforethe Appellate Court praying for recall of the order dated 25.04.2014 andsought restoration of their appeal for its hearing on the merits. By orderGdated 29.06.2016, the Appellate Court dismissed the application, whichgave rise to filing of the writ petition by the appellant-Authority underArticle 227 of the Constitution of India before the High Court ofKarnataka at Bengaluru. By impugned order, the High Court dismissedthe writ petition and affirmed the order of the Appellate Court, whichhas given rise to filing of this appeal by way of special leave by theHdefendant in this Court.

9. So, the short question, which arises for consideration in thisappeal, is whether the Appellate Court and the High Court were justifiedin dismissing the application (M.A.No.77/2014) filed by the appellant-Authority(defendant) and were, therefore, justified in refusing to restoretheir first appeal.

10. Heard Mr. Mahesh Thakur, learned counsel for the appellant-Authority and Mr. Anand Sanjay M. Nuli, learned counsel for therespondent.

11. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal, set asidethe impugned order and also the order dated 29.06.2016 passed by thePrincipal District and Sessions Judge in M.A. No.77 of 2014 and, inconsequence, allow the application filed by the appellant-Authority(defendant) and recall the order dated 25.04.2014 passed bythe Appellate Court.

12. At the outset we consider it apposite to clarify one legalposition, which was rightly brought to our notice by the learned counselfor the appellant-Authority.

13. The first appeal (R.A. No.370/2012) filed by the appellant-Authority suffered dismissal in default on 25.04.2014 because on thatday none appeared for them when the appeal was called on for hearing.

14. Such dismissal attracted the provisions of Order 41 Rule 19 ofthe Code and, therefore, the appeal could be re-admitted for hearing atthe instance of the appellant-Authority only by taking recourse to theprovisions of Order 41 Rule 19 and subject to their making out a sufficientcause which prevented them from appearing on 25.04.2014 when theappeal was called on for hearing.

15. An order of refusal to re-admit the appeal passed by theAppellate Court under Order 41 Rule 19 of the Code is made expresslyappealable under Order 43 Rule 1(t) of the Code to the High Court. Inthis case, since the Appellate Court refused to re-admit the appeal anddismissed the application filed by the appellant-Authority, the remedy ofthe appellant-Authority was to file an appeal in the High Court againstthe order dated 29.06.2016 under Order 43 Rule 1 (t) of the Code.

16. The appellant-Authority instead of filing the appeal under Order43 Rule 1(t) of the Code filed the writ petition under Article 227 of the A

B

C

D

E

F

G

AConstitution against the order dated 29.06.2016. It was an error on thepart of the appellant-Authority and the High Court should have declinedto entertain the writ petition and instead either converted the writ petitioninto the appeal under Order 43 Rule 1(t) of the Code or permitted theappellant-Authority to withdraw the writ petition with a liberty to file anappeal under Order 43 Rule 1(t) of the Code, as the case may be, in itsBdiscretion. It was, however, not noticed and the High Court dismissedthe writ petition on merits.

17. We, therefore, clarify the legal position that the appeal liesunder Order 43 Rule 1(t) of the Code to the High Court against theorder dated 29.06.2016 passed by the Appellate Court which dismissedCthe application made under Order 41 Rule 19 of the Code.

18. Be that as it may, in our considered opinion, the High Courterred in dismissing the writ petition. The High Court should have allowedthe writ petition and the appellant-Authority should have been given theindulgence of hearing of their appeal on merits.D19. Indeed, this case reminds us of the subtle observations of thelearned Judge-Vivian Bose, J., which His Lordship made in one of theleading cases of this Court in Sangram Singh vs. Election Tribunal,Kotah, AIR 1955 SC 425.

20. Vivian Bose J., speaking for the Bench, in his distinctive styleEof writing made the following observations while dealing with the casearising out of Order 9 and reminded the Courts of their duty while decidingthe case. The observations are apt and read as under:

“A code of procedure must be regarded as such. It isprocedure something designed to facilitate justice andfurther its ends: not a penal enactment for punishment andFpenalties; not a thing designed to trip people up. Tootechnical a construction of sections that leaves no room forreasonable elasticity of interpretation should therefore beguarded against (provided always that justice is done toboth sides) lest the very means designed for the furtheranceGof justice be used to frustrate it. Our laws of procedure aregrounded on a principle of natural justice which requiresthat men should not be condemned unheard, that decisionsshould not be reached behind their backs, that proceedings that affect their lives and property should not continue intheir absence and that they should not be precluded fromparticipating in them. Of course, there must be exceptionsand where they are clearly defined they must be given effectto. But taken by and large, and subject to that proviso, ourlaws of procedure should be construed, wherever that isreasonably possible, in the light of that principle.”

21. Keeping the aforementioned statement of law in considerationand applying the same to the facts of this case, we have no hesitation inallowing this appeal and set aside the impugned order.

22. In our view, the Courts below should have seen that the firstappeal is a valuable right of the appellant and, therefore, the appellant-Authority was entitled for an opportunity to prosecute their appeal onmerits. If the appellant’s advocate did not appear may be for myriadreasons, the Court could have imposed some cost on them for restorationof their appeal to compensate the respondent(plaintiff) instead of deprivingthem of their valuable right to prosecute the appeal on merits. This iswhat Justice Vivian Bose has reminded to the Courts while dealing withthe cases of this nature in Sangram Singh (supra) to do substantialjustice to both the parties to the lis. Indeed, dismissal of the appeal indefault and dismissal of the appeal on merits makes a difference. Theformer dismissal is behind the back of the litigant and latter dismissal isafter hearing the litigant. The latter is always preferred than the former.

23. We have perused the application made by the appellant-Authority for recalling of the order and we find that it constitutes asufficient cause within the meaning of Order 41 Rule 19 of the Code.The application, therefore, deserves to be allowed. However, it is subjectto payment of cost of Rs.10,000/- payable by the appellant-Authority tothe respondent(plaintiff). Let the cost be paid before hearing of theappeal.

24. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. The impugned order is set aside. As aconsequence, the application filed by the appellant (MA No.77/2014) isallowed. The R.A. 370/2012 is accordingly restored to its original numberfor its hearing on merits in accordance with law.

A

B

C

D

E

F

G

A25. Parties are directed to appear before the concerned AppellateCourt on 05.03.2019 to enable the Appellate Court to fix a date forhearing of the appeal on merits uninfluenced by any of our observationson the merits because we have not applied our mind to the merits of thecontroversy involved in the appeal. Let the appeal be heard and disposedof as expeditiously as possible preferably within six months from theBdate of this order.

Nidhi Jain

Appeal allowed.

C

D

E

F

G

H