The Commissioner, Mysore Urban Development Authority vs S.S. Sarvesh

CIVIL APPEAL No. 1463 OF 2019 (Arising out of S.L.P.(C) No.23718 of 2018)

The Commissioner, Mysore Urban Development Authority ….Appellant(s)

VERSUS

S.S. Sarvesh ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2019.02.05

2. This appeal is filed against the final judgment 17:38:24 IST Reason:

and order dated 19.02.2018 passed by the High

1 Court of Karnataka at Bengaluru in Writ Petition

No.34313 of 2017 whereby the High Court

dismissed the writ petition filed by the appellant

herein.

3. In order to appreciate the short controversy

involved in this appeal, it is necessary to set out a

few relevant facts.

4. The appellant­Mysore Development

Authority(in short, “the Authority”) is the defendant

whereas the respondent is the plaintiff in the suit

out of which this appeal arises.

5. The respondent filed a civil suit (O.S.

No.685/2006) against the appellant­Authority in the

Court of Principal Senior Civil Judge and Small

Causes Court, Mysuru. The suit was for declaration

of title and permanent injunction in relation to the

land bearing No. 2442 situated in Vijaynagara, 2nd

stage, Devaraja Mohalla, Mysuru (hereinafter

referred to as ‘suit land’).

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6. The appellant­Authority, on being served filed

their written statement. The parties adduced their

evidence. By judgment/decree dated 20.03.2012,

the Trial Court decreed the respondent's suit and

passed a decree against the appellant­Authority in

relation to the suit land.

7. The appellant­Authority 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 Principal

District and Sessions Judge, Mysuru. This appeal

was listed for hearing on 25.04.2014. On that day,

the appellant's counsel did not appear when the

appeal was called on for hearing and, therefore, the

Appellate Court dismissed the appeal in default.

8. The appellant­Authority, therefore, filed an

application before the Appellate Court praying for

recall of the order dated 25.04.2014 and sought

restoration of their appeal for its hearing on the

3 merits. By order dated 29.06.2016, the Appellate

Court dismissed the application, which gave rise to

filing of the writ petition by the appellant­Authority

under Article 227 of the Constitution of India before

the High Court of Karnataka at Bengaluru. By

impugned order, the High Court dismissed the writ

petition and affirmed the order of the Appellate

Court, which has given rise to filing of this appeal

by way of special leave by the defendant in this

Court.

9. So, the short question, which arises for

consideration in this appeal, is whether the

Appellate Court and the High Court were justified in

dismissing the application (M.A.No.77/2014) filed

by the appellant­Authority(defendant) and were,

therefore, justified in refusing to restore their first

appeal.

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10. Heard Mr. Mahesh Thakur, learned counsel

for the appellant­Authority and Mr. Anand Sanjay

M. Nuli, learned counsel for the respondent.

11. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal, set aside the

impugned order and also the order dated

29.06.2016 passed by the Principal District and

Sessions Judge in M.A. No.77 of 2014 and, in

consequence, allow the application filed by the

appellant­Authority(defendant) and recall the order

dated 25.04.2014 passed by the Appellate Court.

12. At the outset we consider it apposite to clarify

one legal position, which was rightly brought to our

notice by the learned counsel for the appellant­

Authority.

13. The first appeal (R.A. No.370/2012) filed by

the appellant­Authority suffered dismissal in default

5 on 25.04.2014 because on that day none appeared

for them when the appeal was called on for hearing.

14. Such dismissal attracted the provisions of

Order 41 Rule 19 of the Code and, therefore, the

appeal could be re­admitted for hearing at the

instance of the appellant­Authority 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 on 25.04.2014

when the appeal was called on for hearing.

15. An order of refusal to re­admit 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 appellant­Authority, the remedy of the

appellant­Authority was to file an appeal in the High

6 Court against the order dated 29.06.2016 under

Order 43 Rule 1 (t) of the Code.

16. The appellant­Authority 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 appellant­Authority

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

appellant­Authority 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.

17. We, therefore, clarify the legal position that

the appeal lies under Order 43 Rule 1(t) of the Code

to the High Court against the order dated

7 29.06.2016 passed by the Appellate Court which

dismissed the application made under Order 41

Rule 19 of the Code.

18. Be that as it may, in our considered opinion,

the High Court erred in dismissing the writ petition.

The High Court should have allowed the writ

petition and the appellant­Authority should have

been given the indulgence of hearing of their appeal

on merits.

19. Indeed, this case reminds us of the subtle

observations of the learned Judge­Vivian Bose, J.,

which His Lordship made in one of the leading

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 style of writing made the following

observations while dealing with the case arising out

of Order 9 and reminded the Courts of their duty

8 while deciding the case. The observations are apt

and read as under:

“A code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”

21. Keeping the aforementioned statement of law

in consideration and applying the same to the facts

9 of this case, we have no hesitation in allowing this

appeal and set aside the impugned order.

22. In our view, 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. This is what Justice

Vivian Bose has reminded to the Courts while

dealing with the cases of this nature in Sangram

Singh (supra) 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

10 back of the litigant and latter dismissal is after

hearing the litigant. The latter is always preferred

than the former.

23. We have perused the application made by the

appellant­Authority for recalling of the order and we

find that it constitutes a sufficient cause within the

meaning of Order 41 Rule 19 of the Code. The

application, therefore, deserves to be allowed.

However, it is subject to payment of cost of

Rs.10,000/­ payable by the appellant­Authority to

the respondent(plaintiff). Let the cost be paid before

hearing of the appeal.

24. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order is set aside. As a consequence, the application

filed by the appellant (MA No.77/2014) is allowed.

The R.A. 370/2012 is accordingly restored to its

original number for its hearing on merits in

accordance with law.

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25. Parties are directed to appear before the

concerned Appellate Court on 05.03.2019 to enable

the Appellate Court to fix a date for hearing of the

appeal on merits uninfluenced by any of our

observations on the merits because we have not

applied our mind to the merits of the controversy

involved in the appeal. Let the appeal be heard and

disposed of as expeditiously as possible preferably

within six months from the date of this order.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHEHSWARI]

New Delhi;

February 05, 2019

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