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Sarwan Singh v. Kishan Singh (Dead) Through Lrs. And Others
Factual and Procedural Background
The appellants (defendants in the trial court) filed Second Appeal No. 4802 of 2003 before the Punjab and Haryana High Court challenging an order of the Second Additional District Judge, Kapurthala, which had affirmed the decree of the Civil Judge (Junior Division), Kapurthala. The appeal was listed on 8-11-2004. Because counsel for the appellants was engaged before the Chief Justice in another matter and the assisting counsel reached late, no one appeared when the case was called, and the High Court dismissed the appeal after briefly touching upon the merits.
An application under Order 41 Rule 19 and Section 151 of the Code of Civil Procedure, 1908 sought restoration of the appeal, explaining the inadvertent absence. The High Court nevertheless refused to restore the matter on the ground that the earlier dismissal had been “on merits.” The present Supreme Court appeals challenge that refusal.
Legal Issues Presented
- Whether the High Court was justified in refusing to restore the second appeal under Order 41 Rule 19 CPC merely because the earlier dismissal order contained observations “on merits.”
Arguments of the Parties
Appellant's Arguments
- The non-appearance on 8-11-2004 was unintentional; counsel was engaged before another Bench, and an assisting counsel reached the courtroom only after the matter had been dismissed.
- The application under Order 41 Rule 19 CPC clearly set out these facts, which were undisputed.
- The High Court erred in treating the earlier dismissal as a bar to restoration when the absence was sufficiently explained.
Respondents' Arguments
- Because the High Court had considered the “merits” while dismissing the appeal, the order could not be recalled or the appeal restored.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court noted that:
- The restoration application expressly detailed the circumstances leading to counsel’s absence, and those facts were not disputed by the respondents or disbelieved by the High Court.
- Order 41 Rule 19 CPC permits restoration when an appellant shows sufficient cause for non-appearance. The existence of “merits” observations in the dismissal order does not foreclose restoration if sufficient cause is otherwise shown.
- Consequently, the High Court’s sole reliance on its earlier “merits” discussion to deny restoration was legally unsustainable.
Holding and Implications
Held: The Supreme Court set aside the High Court’s order and directed that Second Appeal No. 4802 of 2003 be restored to the High Court’s file for adjudication on merits. The appeals were allowed with no order as to costs.
Implications: The parties return to the High Court, where the second appeal will now be heard substantively. The decision turns on the application of Order 41 Rule 19 CPC to undisputed facts and does not announce any new legal principle of broader precedential value.
Dr. Arijit Pasayat, J.— Leave granted.
2. Challenge in these appeals is to the order passed by a learned Single Judge of the Punjab and Haryana High Court dismissing the application to recall the order dismissing the second appeal.
3. The background facts in a nutshell are as follows:
The appellant filed Second Appeal No. 4802 of 2003 before the High Court 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 the appeal noting that none appeared for the appellant. It is to be noted that the appeal was filed by the defendants.
4. An application in terms of Order 41 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 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 260 before the learned Single Judge. When the matter was called the learned counsel for the appellant was arguing another matter before a Bench of Hon'ble the Chief Justice. In the case at hand the respondents were yet to put appearance. So the assisting counsel was instructed to attend the Court to note the next date. By the time the assisting counsel reached the 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.
5. Learned counsel for the respondents submitted that since the matter had been decided on merits there was no scope for recalling the order.
6. 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 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 same was indicated. The High Court has not found the reason indicated to be in any manner incorrect or untrue. Merely because the appeal has been dismissed on merits that could not have been a ground to refuse restoration of the appeal.
7. As rightly contended by learned counsel for the appellant the reason for non-appearance when the matter was taken up had been indicated. There is no dispute that the factual scenario as projected by the appellant was the correct one. Mere fact that the appeal was dismissed on merits could not have been a ground to refuse restoration. Accordingly, we set aside the impugned order of the High Court and direct restoration of the second appeal.
8. The appeals are allowed. There will be no order as to costs.
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