The appeal against the rejection of an application to readmit a filed appeal was heard. The court held that the lower court was hyper-technical and directed the lower appellate court to proceed with the matter on merit.
Impugned order set aside; appellant directed to appear before lower appellate court on 11th April, 2016.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
FAO No.494 of 2003
04.03.2016
Heard Mr.A.K.Mishra, learned counsel for the appellant.
2. The instant appeal has been preferred against the order of rejection of an application
under Order 41 Rule 19, CPC (Misc. Case No.63 of 2000) to readmit the appeal (T.A. No.44 of 1
991). The ground of non-appearance of the appellant was his illness, i.e., chronic duodenal ul
cer complicated by melena. Though the medical certificate has been filed it was not proved. Ho
wever, the same has been dealt with by the learned Additional District Judge, Bhadrak while ad
judicating the matter.
3. As it appears, learned Additional District Judge, Bhadrak took exception of the fact t
hat the treating Physician has not been examined and there are over-writings in the medical ce
rtificate.
4. On a perusal of the impugned order, it appears that though the respondents cross-exami
ned the appellant, they did not file any objection to the misc. case. The appellant has been e
xamined as PW-1, who has deposed about his illness. Though he couldnt say the exact date of hi
s recovery during cross-examination the same cannot be fatal to the case of the appellant in a
petition of this nature. Moreover, when there is no material available to rebut the evidence
adduced by PW-1, I find no reason to disbelieve his statement. It further appears that learned
Additional District Judge, Bhadrak has become hyper-technical in dealing with the petition un
der Order 41 Rule 19, CPC. Learned Additional District Judge should have taken into considera
tion the
fact that the Court should always make an endeavour to decide the lis on merit. When the appel
lant has come up to contest the appeal, the Court should not have adopted a pedantic approach;
rather it should have considered the petition liberally.
5. Thus, the impugned order is not sustainable in law and accordingly the same is set asi
de. It is directed that he appellant shall appear before the learned Lower Appellate Court on
11th April, 2016 along with certified copy of this order to receive further instruction in the
matter. On his appearance, learned Additional District Judge, Bhadrak shall do well to procee
d with the matter and dispose of the same on merit in accordance with law.
Needless to mention here that parties shall cooperate for early disposal of the appeal.
6. With the aforesaid observation and direction, the appeal stands disposed of.
Issue urgent certified copy of the order on proper application.
2
2 issues framed by the court
Whether the impugned order rejecting the application to readmit the appeal on the ground of non-appearance is sustainable in law.
Whether the Trial Court should have adopted a pedantic approach instead of deciding the lis on merit.
1 provisions across 1 enactments
Appellant
Respondents
Unknown Judge
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court