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1998 Supreme(All) 528
IN THE HIGH COURT OF ALLAHABAD
D. K. SETH
ZILLA PANCHAYAT, BIJNOR - Appellant
Versus
VIITH ADDL.DIST.JUDGE, BIJNOR - Respondents
C. M. W. P. 13101 Of 1998
Decided On : 05/02/1998
N.C.RAJVANSHI, RAJVANSHI, S.C.M.S.Haq
A court cannot dismiss an appeal for default on a date that was not fixed for the hearing of the appeal.
Headnote:
RESTORATION OF APPEAL - DISMISSAL OF APPEAL FOR DEFAULT - SUFFICIENCY OF CAUSE - PERVERSE ORDER - WRIT JURISDICTION - CLEAN HANDS DOCTRINE - APPLICATION OF ORDER 41 RULE 19 CPC - INTERPRETATION OF COURT ORDER - FIXING OF DATE FOR HEARING - JURISDICTIONAL ERROR - DISTINCTION FROM GODHU V. ADDITIONAL DISTRICT JUDGE (VIII) COURT BULANDSHAHAR CASE.
Fact of the Case:
The petitioner's appeal was dismissed for default on 18-4-1996. An application for restoration under Order 41, Rule 19 of the Code of Civil Procedure was filed and dismissed on 18-3-1998. The petitioner challenged this order in a writ petition, arguing that the dismissal of the appeal was perverse and that the application for restoration should have been allowed.
Finding of the Court:
The court found that the order dismissing the appeal was perverse because the date of 18-4-1996 was not fixed for the hearing of the appeal, but rather for the disposal of two applications for impleadment. The court also found that the petitioner had not come with unclean hands, as he had not suppressed any material facts in his writ petition.
Issues: 1. Whether the dismissal of the appeal for default was perverse? 2. Whether the petitioner had come with unclean hands? 3. Whether the application for restoration should have been allowed?
Ratio Decidendi: 1. The court held that the dismissal of the appeal was perverse because the date of 18-4-1996 was not fixed for the hearing of the appeal, but rather for the disposal of two applications for impleadment. The court found that this was a jurisdictional error and that the appeal could not have been dismissed on that date. 2. The court held that the petitioner had not come with unclean hands, as he had not suppressed any material facts in his writ petition. The court distinguished the case from Godhu v. Additional District Judge (VIII) Court Bulandshahar, where the petitioner had attempted to create a legal obstruction to defeat the decree by executing a sale deed in favor of a third party during the pendency of the appeal. 3. The court held that the application for restoration should have been allowed, as the petitioner had shown sufficient cause for his non-appearance on the date of the hearing.
Final Decision: The court allowed the writ petition, set aside the order dismissing the application for restoration, and restored the appeal to the file.
( 1 ) BY an order dated 18-4-1996 passed in Appeal No. 247 of 1989 by Additional District Judge (VII) Court, Bijnor, the appeal was dismissed, for default. An application under Order 41, Rule 19 of the Code of Civil Procedure, was filed. By an order dated 18-3-1998 the said application was dismissed. It is against this order the present writ petition has been filed.
( 2 ) SRI N. C. Rajvanshi, Senior Advocate, appearing on behalf of the petitioner points out that the impugned order is wholly perverse and could not have been passed, in the facts and circumstances of the case. He has led me through the records of the case.
( 3 ) SRI M. S. Haq, learned counsel for the opposite parties opposes the contention of Sri N. C. Rajvanshi. According to him the petitioner has not been able to show sufficient cause for his non-appearance so as to enable the Court to restore the appeal. According to him writ jurisdiction can be invoked by a person who comes with unclean hand. Unless the petitioner comes with clean hands he is not entitled to any relief. He also contends that the order impugned is concluded by finding of fact which this Court cannot interfere in exercise of writ jurisdiction. He also contends that the petitioner had moved writ petition No. 632 of 1998, which was disposed of by this Court on 2-3-1998. But the said fact has not been disclosed in the present writ petition. As such the petitioner is guilty of suppression of material facts, due to which it can very well be said that the petitioner has not come with clean hands. Therefore he cannot invoke writ jurisdiction. He further contends that the appeal was dismissed once earlier in the year 1992 and was restored in the year 1993. The petitioner appears to be habitual defaulter. In fact, the petitioners game is only to delay the process and keep the matter hanging and thereby harass the opposite parties. Therefore, by reason of his conduct this Court should not exercise its discretionary jurisdiction in his favour. On these grounds he contends that the writ petition should be dismissed.
( 4 ) SRI Haq further contends that the appeal has been dismissed thrice and the petitioner is delaying the process and his conduct is bad and does not warrant exercise of equity in his favour. He also contends that in the meantime decree has also been executed and he has obtained the possession. This fact that the decree has already been executed in 1992, is admitted by Sri Rajvanshi. According to Mr. Haq after the decree is executed the appeal has become infructuous. Therefore, the restoration would be futile exercise which the Court should avoid.
( 5 ) I have heard Sri N. C. Rajvanshi, learned Senior Advocate, appearing on behalf of the petitioner and Sri M. S. Haq, learned counsel appearing on behalf of respondents at length.
( 6 ) HAVING regard to the facts and circumstances of the case and the issue involved, in my view, the question as to the execution of decree and taking of the possession through such execution though not very relevant for the purposes of deciding the issue involved herein but since the question has been raised, we may examine the same. Execution of the decree during pendency of the appeal never makes the appeal infructuous. The appeal continues to be pending until it is finally decided. If the appeal is dismissed and an application for restoration is made, the appeal shall be deemed to be pending during the period of pendency of such application by fiction. The dismissal of the appeal is subject to the result of such application. Thus the execution is subject to the outcome of such application. Inasmuch as if the application is ultimately allowed the appeal is restored then the appeal continues to remain pending. If, not allowed then the appeal is no more pending and the execution becomes final subject however to the attainment of finality of the decree. In other words execution reaches finality if the decree had attained finality. Finality of the decree
