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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Javed Iqbal Wani, J.
Doulat Ram & Anr. – Petitioners
Versus
Roop Chand & Ors. – Respondents
RESC No. 23 of 2018
Decided On : 19-03-2021
Restoration - Civil First Appeal - Order XLI Rule 16, Order XLI Rule 17 - The court discussed the provisions of Order XLI Rule 16 and Rule 17, emphasizing that an appeal cannot be dismissed on merits in the absence of the appellant or their counsel. The court found that the appellant and respondents were heard in the appeal, providing a real opportunity to be heard, and the appeal had been reserved for orders. The court held that the cause expressed for non-appearance of the appellant was insufficient and not convincing, leading to the dismissal of the restoration application.
Fact of the Case:
The petitioners filed a suit in 2008, which was dismissed by the Trial Court in 2013. The Civil First Appeal was dismissed in 2018, and the petitioners sought restoration, claiming they were not informed about the dismissal.
Finding of the Court:
The court found that the appeal had been heard, providing a real opportunity for both parties to be heard, and was reserved for orders. The cause expressed for non-appearance of the appellant was deemed insufficient and not convincing, leading to the dismissal of the restoration application.
Issues: The main issue was whether the appeal could be said to have been decided on merits in the absence of the appellant and their counsel, warranting readmission.
Ratio Decidendi: The court emphasized that an appeal cannot be dismissed on merits in the absence of the appellant or their counsel, as per Order XLI Rule 16 and Rule 17. The court found that the appellant and respondents were heard in the appeal, providing a real opportunity to be heard, and the appeal had been reserved for orders.
Final Decision: The application for restoration was held misconceived and was dismissed.
JUDGMENT :
1. Instant petition is filed for readmission/restoration of Civil First Appeal bearing CFA No. 22/2013.
2. The background facts those emerge from the case in hand are that a suit came to be filed on 24.01.2008 by the petitioners and proforma respondent Nos. 12 to 14 herein in respect of a land situated at Village Kandrori against the contesting respondents herein. The said suit is stated to have been dismissed by the Trial Court vide judgment and decree dated 30.04.2013.
3. Against the said judgment and decree (supra) the petitioners herein state to have filed a Civil First Appeal bearing CFA No. 22/2013. The aid appeal is stated to have been dismissed on 17.09.2018 by this Court along with a connected writ petition bearing OWP No. 1798/2015 in absence of the present petitioner/appellants herein.
4. It is being stated that on 17.09.2018 the appeal along with the writ petition (supra) were listed for final hearing before this Court at S. No. 30 and when the case was taken up, the arguing counsel for the respondents 1 to 11 was not present and that the petitioners was told that the cases stand adjourned and it is further stated that the petitioners were under the impression that the aforesaid cases would be again listed for final hearing. It is stated that on 24th September, 2018 the clerk of the counsel for the petitioners informed the petitioners that the above titled appeal and writ petition is dismissed on 17.09.2018. The information is stated to be shocking and suppressing for the petitioners. It is being stated that the appellant No. 1 sent his grandson, namely, Sh. Ankush Vaid and appellant No. 2 sent his son Sh. Surinder Vaid to contact counsel where upon it is being stated that they had not been informed that the appeal has been decided on 17.09.2018 and judgment announced under Section 138 clause 3 of the J&K High Court Rules, 1999.
5. It is being further stated that the counsel informed the above relatives of the petitioner Nos. 1 and 2 that they were under the impression that the case had been adjourned on 19.07.2018, but in fact had been kept on Board for next date that is 20.07.2018 and on the said date counsel did not appear and then the case was heard and reserved on the said date. It is being stated that the counsel expressed ignorance about keeping of the case on Board for 20.07.2018 and reserving the same for judgment. It is being contended in the application that the appellants and their counsel was not admittedly present on 20.07.2018 when the case was reserved for judgment and that it appears that the Court heard the respondents, reserved the aforesaid appeal as well as writ petition whereafter dismissed the same on 17.09.2018.
6. The fundamental contention urged in the instant application is that in the aforesaid facts and circumstances, the appeal could not have been dismissed on merits by the Court and least could have been dismissed in default. The appeal, therefore, through the medium of the instant application is sought to be restored and re-admitted to its original number along with instant applications.
7. Per-contra respondent-10 in the objections filed resist and controvert the contentions raised in the application so-much-so seeks dismissal of the application on the premise that the order of dismissal of the appeal has been passed legally by the Court and that the application in question is not maintainable being utterly misconceived and unsustainable in the eyes of law.
8. It is being further contended in the objections that appellant has suppressed material facts from this Court regarding the orders passed in the appeal from time to time inasmuch as, about the hearing of the appeal undertaken thereof. A reference in the objections is made to orders dated 15.12.2017, 09.02.2018, 09.04.2018, 05.05.2018, 28.05.2018, 19.07.2018 and 20.07.2018 to demonstrate and show that the appeal was duly heard by the Court affording a reasonable opportunity of hearing to the appellants as well as the responde
An appeal cannot be dismissed on merits in the absence of the appellant or their counsel, as per Order XLI Rule 16 and Rule 17.
An appeal cannot be dismissed on merits when the appellant remains absent, as per Order 41 Rule 17(1) of C.P.C.
The main legal point established in the judgment is that the appeal should not be dismissed on merits in the absence of the appellant, and proper procedural rules, such as Rule 89-A of General Rules ....
Judicial discretion under Order IX Rule 4 C.P.C. is crucial, and a liberal approach should be taken to allow restoration of suits for effective adjudication, especially when circumstances affecting n....
The Court's decision was primarily based on the interpretation and application of Order 41 Rule 17(1) of the Code of Civil Procedure, 1908, and the explanations provided by relevant case laws, emphas....
Point of Law : Order XVII prescribes the procedure to be followed by the Court in trial of Suits. The procedure to be followed by appeal Court while hearing an appeal is prescribed in Order XLI CPC.
Appeal from Original Decree – Explanation to Order XLI Rule 17 CPC also applies in cases where counsel for appellant, though physically present in Court when appeal is called on for hearing, refuses ....
A litigant should not suffer due to the negligence of their counsel, and courts must consider sufficient cause for delays with a justice-oriented approach.
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