THE COMMISSIONER, MYSORE URBAN DEVELOPMENT AUTHORITY versus S.S. SARVESH

Citation: [2019] 2 S.C.R. 813 · Decided: 05-02-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A
B
C
D
E
F
G
H
813
THE COMMISSIONER, MYSORE URBAN DEVELOPMENT
AUTHORITY
v.
S.S. SARVESH
(Civil Appeal No. 1463 of 2019)
FEBRUARY 05, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Code of Civil Procedure, 1908:
Or.XLI, r.19 and Or.XLIII, r.1(t) – Dismissal in default –
Restoration – Dismissal of first appeal filed by the Development
Authority for non-appearance of the counsel – Application filed
seeking recall of the order and restoration of the appeal – Dismissal
by the appellate court – Writ petition by the High Court u/Art. 227
also dismissed – On appeal, held: An order of refusal to re-admit
the appeal passed by the appellate court u/Or. XLI, r. 19 is made
expressly appealable u/Or. XLIII, r. 1(t) to the High Court – Remedy
of the appellant-Authority was to file an appeal in the High Court
against the order u/Or. XLIII, r. 1 (t) – Appellant-Authority erred in
filing the writ petition u/Article 227 against the order – Furthermore,
the courts below should have seen that the first appeal is a valuable
right of the appellant and, thus, the appellant-Authority 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 – Application made by
the appellant-Authority for recalling of the order, constitutes a
sufficient cause within the meaning of Or. XLI, r. 19, and thus, is
allowed, subject to payment of cost of Rs.10,000/- payable by the
appellant-Authority to the respondent – Order of the High Court is
set aside.
Allowing the appeal, the Court
HELD: 1.1 The first appeal filed by the appellant-Authority
suffered dismissal in default because on that day none appeared
for them when the appeal was called on for hearing. Such dismissal
attracted the provisions of Order 41 Rule 19 of the Code of Civil
[2019] 2 S.C.R. 813
813
A
B
C
D
E
F
G
H
814                    SUPREME COURT REPORTS            [2019] 2 S.C.R.
Procedure, 1908 and, therefore, the appeal could be re-admitted
for hearing at the instance of the appellant-Authority 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 when the appeal was called on for hearing.
[Paras 13, 14][817-E, F]
1.2 An order of refusal to re-admit 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
appellant-Authority, the remedy of the appellant-Authority was
to file an appeal in the High Court against the order
dated 29.06.2016 under Order 43 Rule 1 (t) of the Code.
[Para 15][817-G]
1.3 The appellant-Authority 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 appellant-Authority 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
appellant-Authority 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.
[Para 16][817-H, 818-A-B]
1.4 The appeal lies under Order 43 Rule 1(t) of the Code
to the High Court against the order dated 29.06.2016 passed by
the Appellate Court which dismissed the application made under
Order 41 Rule 19 of the Code. However, the High Court erred
in dismissing the writ petition. The High Court should have
allowed the writ petition and the appellant-Authority should have
been given the indulgence of hearing of their appeal on merits.
[Paras 17, 18][818-C-D]
A
B
C
D
E
F
G
H
815
1.5 The Courts below should have seen that the first appeal
is a valuable right of the appellant and, therefore, the appellant-
Authority 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 

Excerpt shown. Read the full judgment & AI analysis in Lexace.