SARWAN SINGH versus KISHAN SINGH (DEAD) THR. LRS. AND ORS.

Citation: [2007] 4 S.C.R. 468 · Decided: 26-03-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
SARWAN SINGH 
v. 
't 
KISHAN SINGH (DEAD) THR. LRS. AND ORS. 
MARCH 26, 2007 
B 
[DR. ARIJITPASAYAT ANDLOKESHWARSINGHPANTA, JJ.] 
Code of Civil Procedure, I 908-0rder XL/, Rule I 9-Restoration of 
.... 
appeal dismissed for default-Scope of-,-Held: Appeal is to be restored since 
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c the reasons were indicated for non appearance when matter was taken up 
and the same are correct-Restoration of appeal cannot be refused merely 
because the appeal was dismissed on merits, 
Second Appeal was dismissed in default after making observations on 
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the merits of the case. Application was filed under Order XLI Rule 19 read 
D with section 151 CPC to restore the appeal. Reasons for non-appearance on 
the date fixed were indicated in the application. High Court dismissed the 
application. Hence, the present appeal. 
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Allowing the appeal, the Court 
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E 
HELD: In the application for restoration the reasons for non-appealflnce 
at the time when the matter was taken up had been indicated. The matter was , 
fixed for filing of the vakalatnama of the respondents. There was unintentional 
absence and the reason for the same was indicated. High Court has no~found 
the reason indicated to be in any manner incorrect or untrue. Merely because 
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the appeal has been dismissed on merits that could not have been a ground to 
refuse restoration of the appeal. Thus, the impugned order of the High Court 
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is set aside and the Second Appeal is directed to be restored. 
[Paras 7 and 8] [469-G-H; 470-A-B, B-C] 
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CIVIL APPELLATE JURISDICTION: CivilAppealNo.1583 of2007. 
f 
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From the Final Judgment and Order dated 08.11.2004 of the High Court 
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of Punjab & Haryana at Chandigarh in CM No. 11092-C of2004 in RSA No. 
r
4802 of2003. 
l.-
Ajay Majithia, Rajesh Kumar and Dr. Kailash Chand for the Appellant. 
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H 
468 
+ 
SARWANSINGHv. KTSHANSINGH(DEAD)THR.LRS. {PASAYAT.J.] 469 
Arvind Kumar, Laxmi Arvind and Poonam Prasad for the Respondents. 
A 
The Judgment of the Court was delivered by 
DR. ARIJIT P ASAY AT, J. l. Leave granted. 
2. Challenge in these appeals is to the order passed by a learned Single B 
Judge of the Punjab and Haryana High Court dismissing the application to 
recall the order dismissing the Second Appeal. 
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3. The background facts in a nutshell are as follows: 
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4. Appellant filed Second Appeal No. 4802/2003 before the High Court c 
questioning correctness of the order passed by a learned Second Additional 
District Judge, Kapurthala. By the said order the first Appellate Court affirmed 
the order of the learned Civil Judge, Junior Division, Kapurthala. The matter 
was listed on 8.11.2004. On that day there was no appearance on behalf of 
the appellant. The High Court referred to the merits of the case and dismissed 
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the appeal noting that none appeared for the appellant. It is to be noted that 
the appeal was filed by the defendants. 
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.,. 
5. An application in terms ·of Order XLI Rule 19 of the Code of Civil 
Procedure, 1908 (in short the 'Code') read with Section 151 of the Code was 
filed to restore the appeal for deciding the same on merits. It was indicated 
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in the application for restoration as to why there was non-appearance on the 
date fixed. In the application it was categorically stated that the matter was 
listed at item No.260 before the learned Single Judge. When the matter was 
called learned counsel for the appellant was arguing another matter before 
a Bench of Hon'ble the Chief Justice. In the case at hand respondents were 
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yet to put appearance. So the assisting counsel was instructed to attend the 
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Court to note the next date. By the time the ·assisting counsel reached the 
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Court, the matter had already been taken up and dismissed for want of 
prosecution. It is submitted that the High Court did not. take note of the 
aforesaid factual aspects and on the contrary dismissed the application for 
restoration on the ground that the matter was decided on merits. 
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6. Learned counsel for the respondents submitted that since the matter 
had been decided on merits there was no scope for recalling the order. 
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7. It is to be noted that in the application for restoration the reasons 
for non appearance at the time when the matter was taken up had been H 
470 
SUPREME COURT REPORTS 
c20011 4 s.c.~. 
A indicated. It was noted that the matter was fixed for filing of the vakalatnama 
of the respondents. There was unintentional absence and the reason for the 

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