Summary
A first appeal dismissed for counsel’s nonappearance was restored on sufficient cause and payment of costs. Refusal to readmit such an appeal under Order XLI Rule 19 CPC is expressly appealable under Order XLIII Rule 1(t). The High Court should have addressed that statutory remedy instead of deciding an Article 227 petition on merits. The substantive property dispute remained open for appellate adjudication.
Issues
- What remedy lay against refusal to restore a first appeal dismissed in default, and whether restoration was justified.
Provisions considered
- Order XLI Rule 19, Code of Civil Procedure, 1908Readmission required sufficient cause preventing appearance; the restoration application satisfied that requirement, subject to costs. (¶¶ 13–14, 23)
- Order XLIII Rule 1(t), Code of Civil Procedure, 1908Refusal to readmit under Order XLI Rule 19 was expressly appealable to the High Court. (¶ 15–17)
Held
- The proper remedy was an appeal against refusal to readmit. In its discretion, the High Court should have converted the Article 227 petition into that appeal or allowed withdrawal with liberty to appeal, rather than entertaining it on merits. (¶ 15–17)
- Procedure should facilitate justice while doing justice to both sides. The first appeal was a valuable right; on the facts, the application showed sufficient cause and restoration with compensatory costs was appropriate. (¶ 18–23)
- Restoration did not determine the property controversy. The appellate court was to hear the appeal on merits uninfluenced by the Supreme Court’s observations and dispose of it expeditiously, preferably within six months. (¶ 24–25)
Result
Appeal allowed; impugned order set aside, restoration application allowed and first appeal restored subject to ₹10,000 costs payable to the respondent before hearing. Parties directed to appear before the appellate court on 5 March 2019.