Lrs.Of Mangi Lal vs Magha Ram And Ors
2023 Latest Caselaw 3567 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR 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



            HON'BLE MS. JUSTICE REKHA BORANA

                                      Order

25/04/2023

1. 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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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.

3. 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.

4. 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.

5. 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.

6. 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

(3 of 6) [CRES-5/2016]

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.

7. Order XLI Rule 17 provides as under:

"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.

[Explanation.-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.] (2) Hearing appeal ex parte.-Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte."

(4 of 6) [CRES-5/2016]

8. Order XLI Rule 19 provides as under:

"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."

9. 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

(5 of 6) [CRES-5/2016]

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.

11. 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

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

"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 non- appearance of the advocate."

12. 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.

(6 of 6) [CRES-5/2016]

13. Let S.B. Civil Second Appeal No. 246/2008 be restored to its

original number and be listed for admission in the next week.

(REKHA BORANA),J 70-AbhishekS/-

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