Point of law : Section 4 of the Code of Civil Procedure, as is evident from its plain reading, does not mean that the CPC does not apply to the proceedings under special or local laws but only indicates that where there is an inconsistency, the Rules of Code of Civil Procedure do not prevail.

JUDGMENT :

Sanjeev Kumar, J.

1. Instant appeal filed under clause 12 of the Letters Patent is directed against order dated 19.03.2021 passed by a learned Single Judge, whereby the petition of the appellants for re-admission (RESC No.23/2018) of Civil First Appeal (CFA No.22/2013), dismissed vide order and judgment dated 17.09.2018, has been rejected.

2. Mr. R.K. Jain, learned Senior Counsel appearing for the contesting respondents has raised a preliminary objection to the maintainability of the letters patent appeal against the impugned order. It is argued by Mr. Jain that order dated 17.09.2018 passed by the learned Single Judge, whereby CFA No.22/2013 was disposed of is an order passed by the learned Single Judge on merits and, therefore, no application for re-admission, in terms of Order 41 Rule 19, is maintainable.

3. Before we examine the arguments of Mr. Jain, we deem it appropriate to notice few material facts to put the issues raised in this appeal in proper perspective. The appellants and the proforma respondents filed a suit for declaration to declare the sale deed executed by the contesting respondent Nos. 1 to 7 through respondent No.8 in favour of respondent Nos.9 to 11 as null and void. The suit was contested by the contesting respondents by filing their written statements. The Court of learned District Judge, Reasi [“the trial Court”] after holding trial dismissed the suit filed by the appellants vide its judgment and decree dated 30.04.2013.

Aggrieved, the appellants challenged the judgment and decree of the trial Court by way of Civil First Appeal i.e. CFA No.22/213 before the learned Single Judge of this Court. The appeal was admitted to hearing. On 15.12.2017, the appeal along with writ petition i.e. OWP No.1798/2015 filed by the appellants against the order of Additional Commissioner, Jammu dated 28.12.2015 that had arisen out of the partition proceedings before the revenue courts, came up for consideration before the learned Single Judge. The matter was heard in part by the learned Single Judge and was directed to be listed on 07.02.2018 for continuation of the arguments. On 09.02.2018, the matter could not be heard due to non-availability of learned counsel for the respondents and, therefore, adjourned to 13.02.2018 for continuation of arguments. On 28.05.2018, learned counsel for the parties were present but the matter was adjourned to 29.05.2018 for continuation. Something similar happened on 19.07.2018 and the matter was kept on Board by the learned Single Judge for 20.07.2018. On 20.07.2018, there was no representation on behalf of the appellants, the matter was heard and reserved. Order dated 20.07.2018 reads thus; “Heard and reserved”.

Thereafter the judgment was pronounced by the learned Single Judge on 17.09.2018. As is evident from the judgment dated 17.09.2018, the civil first appeal preferred by the appellants was decided on merits, though, in the absence of the appellants. Since on 20.07.2018 the appellants either in person or through their counsel were not present, as such, the arguments were concluded in their absence and the matter was reserved for judgment.

4. The appellants against whom the judgment dated 17.09.2018 was delivered filed a petition for re-admission of the appeal in terms of Order 41 Rule 19 of the Code of Civil Procedure contending, inter alia, that the learned Single Judge could not have decided the civil first appeal on merits in absence of the appellants and the only course open to the learned Single Judge was to dismiss the appeal in default.

5. The application was considered by the learned Single Judge and the same was rejected vide judgment impugned primarily on the ground that hearing of the appeal, which commenced on 15.12.2017 in the presence of counsel for the parties, had been concluded on 19.07.2018 that, too, in the presence of learned counsel for the parties and on 20.07.2018 the appeal was simply reserved for orders notwithstanding the use of expression “heard” appea