IMPORTANT POINT
Order of refusal to re-admit appeal under Order LXI Rule 19 is appealable under Order LXIII Rule 1(t). If a party instead of filing application under Order LXIII Rule 1(t), files a writ petition, High Court should decline to entertain the writ petition and convert it into appeal under Order LXIII Rule 1(t) or permit the party to withdraw the writ petition with a liberty to file an appeal under Order 43 Rule 1(t).

JUDGMENT :

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed against the final judgment and order dated 19.02.2018 passed by the High 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 appellant-Mysore 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 appellant-Authority 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’).

6. The appellant-Authority, 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 appellant-Authority in relation to the suit land.

7. The appellant-Authority 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 appellant-Authority, 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 merits. By order dated 29.06.2016, the Appellate Court dismissed the application, which gave rise to filing of the writ petition by the appellant-Authority 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 appellant-Authority (defendant) and were, therefore, justified in refusing to restore their first appeal.

10. Heard Mr. Mahesh Thakur, learned counsel for the appellant-Authority 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 appellant-Authority (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 appellant-Authority suffered dismissal in default 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 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 on 25.04.2014 when the appeal was called on for hearing.

15. An order of refusal to re-admi