Allowed

Lrs.of Mangi Lal v. Magha Ram and Ors.

Rajasthan HC25 Apr 2023CRES/5/2016

Case brief

AI extract

What is this about?

The High Court at Jodhpur allowed a restoration application challenging an impugned order that dismissed an appeal on merits despite the appellant's counsel not appearing. The Court held that Order XLI Rule 17 CPC prohibits deciding an appeal on merits if the appellant is absent, mandating dismissal in default instead, and may be restored.

What did the court decide?

The impugned order dated 22.09.2015 was set aside, and S.B. Civil Second Appeal No. 246/2008 was restored to its original number for admission.

Lrs.of Mangi Lal Vs Magha Ram and Ors. — Civil Procedure and Limitation | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Restoration No. 5/2016

Lrs.of Mangi Lal

----Petitioners

Versus

Magha Ram And Ors.

----Respondents

For Petitioner(s)	: Mr. M.S. Rajpurohit
For Respondent(s)	: Mr. M.K. Trivedi

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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25/04/2023

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The present restoration/re-admission application No.5/2016 under Order XLI Rule 19 read with Section 151 of the Code of Civil Procedure has been filed against the order dated 22.09.2015 whereby the appeal as preferred by the appellant was decided on merits despite the learned counsel for the appellant not being present on the said date. Vide the order impugned, the appeal of the appellants has been decided on merits and the same has been dismissed being devoid of merits. 2. Learned counsel for the appellant submitted that in terms of the provision of Order 41 Rule 19, CPC the appeal could have been dismissed in default on the date when learned counsel did not appear but, it could not have been decided on merits. Therefore, as the appeal has been decided on merits totally in contravention to the provisions of law, the present restoration/re-admission application deserves to be allowed and the appeal deserves to be decided on merits only after hearing learned counsel for the

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[CRES-5/2016]

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(2 of 6)

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appellant. In support of his submissions learned counsel relied upon the Apex Court judgments in the cases of Sarwan Singh Vs. Kishan Singh (Dead) Thr. L.Rs. & Ors.; 2007 (2) CCC 295 (SC) and Ajit Kumar Singh & Ors. Vs. Chiranjibi Lal & Ors; (2002) 3 SCC 609 .

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Per contra, learned counsel for the respondents firstly raised the objection that the present application is not maintainable as once the appeal, rightly or wrongly, having been decided on merits, the only remedy available to the appellants was to challenge the same vide a Special Leave to Appeal. As the appeal had not been dismissed in default, the present restoration application would not be maintainable.

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On the merits of the application, learned counsel submitted that even if the Court feels inclined to entertain the present application, no sufficient cause for non-appearance of the learned counsel on the date when the order impugned was passed has been shown in the application and therefore also, the present application deserves to be dismissed.

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In support of his contentions learned counsel relied upon the judgment of the Apex Court in the case of Harbans Pershad Jaiswal (D) by Lrs. Vs. Urmial Devi Jaiswal (D) by L.Rs.; AIR (2014) SC 3032 and of this Court passed in Dargah Committee, Ajmer Vs. Hamida Banu & Ors.; AIR 1988 RAJ 169.

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A perusal of the record shows that the appeal was listed before the Court on 30.08.2015 on which date it was ordered that the application under Order 41 Rule 27, CPC shall be considered at the time of final hearing of the appeal. The matter was next listed

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[CRES-5/2016]

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(3 of 6)

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on 09.09.2015 on which date both the learned counsels had appeared and the matter was adjourned for a week. It was then listed on 22.09.2015 and on that date, as none had appeared on behalf of the appellants, the Court proceeded on to decide the appeal on merits and dismissed the appeal being devoid of merits. The order impugned reflects two contrary statements in so far as in Para 7 of the order impugned it has been mentioned, “ No one is present on behalf of the defendant-appellant No.1, though the name of Mr. M.S. Rajpurohit is shown in the cause list .” and in Para 8 it has been mentioned, “ Having heard the learned counsels for the parties and upon perusal of the record, this Court is satisfied that no substantial question of law arises in this appeal for further consideration by this Court and the findings of the learned courts below appear to be findings of fact based on relevant evidence, which cannot be said to be perverse in any manner and therefore, do not give rise to any substantial question of law. ” It is clear that both these facts cannot be correct at the same time.

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Order XLI Rule 17 provides as under:

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“ Dismissal of appeal for appellants' default .- (1) 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.

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[ Explanation .-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.]

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(2) Hearing appeal ex parte.-Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.”

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[CRES-5/2016]

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(4 of 6)

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Order XLI Rule 19 provides as under:

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“ Re-Admission Of Appeal Dismissed For Default .- Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.”

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The explanation as appended to Rule 17 specifically provides that the power granted to the Court in terms of Rule 17 (1) cannot be construed to empower the Court to dismiss the appeal on merits. Meaning thereby, if the counsel for the appellant does not appear before the Court on the date fixed for hearing, the only option available to the Court is to dismiss the appeal in default and the Court cannot decide the same on merits The said dictum has been reiterated by the Hon’ble Apex Court time and again and to be specific, in the case of Rafiq Vs. Munshilal; (1981) 2 SCC 788 and Abdur Rahman Vs. Athifa Begum; (1996) 6 SCC 62 . 10. However, in the present matter the appeal has been decided on merits. Therefore, the question is whether the fact that the appeal has been decided on merits and not dismissed in default, can be a ground to refuse the restoration of the appeal? The reply to the said question can be found in the Hon’ble Apex Court judgment of Sarwan Singh Vs. Kishan Singh (supra) wherein the Apex Court specifically held that merely because the appeal has been dismissed on merits that could not have been a ground to refuse restoration of the appeal. Even in the matter of Harbans Pershad Jaiswal (supra) relied upon by learned counsel for the respondent, it has been specifically held that, in

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[CRES-5/2016]

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(5 of 6)

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absence of learned counsel for the appellant, the appeal could not have been decided on merits and the only course open to the Court was to dismiss the appeal in default. Therein the Hon’ble Apex Court proceeded on to substitute the order passed on merits by the order dismissing the appeal in default.

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So far as the ground raised by learned counsel for the respondents that no sufficient cause has been shown in the application is concerned, a perusal of the application as preferred shows that the only ground raised is that it was because of the inadvertence of the learned counsel that he could not appear on the said date before the Court. It is also relevant to note that it was only the first day on which the learned counsel did not appear. It is not that he had not appeared from last many occasions and therefore, the Court proceeded on to decide the appeal on merits. It is the settled proposition of law that a litigant cannot be penalized for any inaction or mistake on part of the learned counsel. In the case of The Secretary, Department of Horticulture, Chandigarh and Ors. Vs. Raghu Raj; (2008) 13

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SCC 395 , the Hon’ble Apex Court observed as under:

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“28. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or nonappearance of the advocate.”

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In view of the above observations and in view of the ratio as laid down in the case of Sarwan Singh (supra), the present application is allowed and the order impugned dated 22.09.2015 is hereby set aside.

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[CRES-5/2016]

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(6 of 6)

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Let S.B. Civil Second Appeal No. 246/2008 be restored to its original number and be listed for admission in the next week.

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(REKHA BORANA),J

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70-AbhishekS/-

Lrs.of Mangi Lal v. Magha Ram and Ors.

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Lrs.of Mangi Lal v. Magha Ram and Ors.

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