Inherent powers under Section 151 CPC can be exercised to restore appeals dismissed due to procedural lapses, emphasizing justice over technicality.

Dated this the 7th day of December, 2021 The challenge in this revision petition is against dismissal of the review petition filed, assailing the order by which the appellate court dismissed on the premise that the appeal is not pressed.

2. The essential facts are that:-

The petitioner is the first plaintiff and his father, the second plaintiff in O.S.No.64 of 2008 of the Sub Court, Irinjalakuda. The suit was filed, seeking to declare Document No’s 6577 of 2007 and 6578 of 2007 of Nellayi SRO as null and void and to restrain the defendants from trespassing upon the plaint schedule properties. Petitioner is employed abroad and he had authorised his father to contest the suit on his behalf. The suit was dismissed and the plaintiffs preferred appeal (A.S.No.173 of 2010) before the District Court, Thrissur. Pending the appeal, the second appellant/petitioner’s father, who was his Power of Attorney holder, died on 12.04.2014. Thereupon, petitioner’s mother and sister were impleaded as the legal representatives of the deceased second appellant. The additional appellants were not interested in proceeding with the appeal, since the main dispute is with respect to the petitioner’s property and consequently, the additional appellants informed the Counsel that they are not interested in proceeding with the appeal and the appeal got dismissed as not pressed. On coming to know about this development, petitioner filed an application for getting the appeal restored, pointing out that the appeal was withdrawn without his volition. That application, filed under Order 47 Rule 1 CPC, was dismissed the impugned order.

3. Heard, Adv. Dhanya.P.Ashokan, learned Counsel for the petitioner and M/s. Santhosh.P.Poduval. Adv.

K.S.Bharathan, learned Counsel for the respondents.

4. Learned Counsel for the petitioner contended that the court below committed gross illegality by dismissing the appeal based on a representation made on behalf of two of the appellants. According to the learned Counsel, the appellate court was bound to ensure that the submission was being made on behalf of all the appellants. It is submitted that, the appeal ought to be restored when the original first plaintiff, who is the first appellant, pointed out that the appeal was not pressed without his knowledge and concert.

5. Drawing attention to the findings in the impugned order, it is submitted that the court below had rejected the application for restoration based on a decision of the Punjab- Haryana High Court, which held that Order 9 Rule 9 of CPC is not applicable, when the appeal is dismissed. Learned Counsel relied on the decision of this Court in Poyyakandathil Kannan v. State of Kerala and Others [2015 KHC 3682] , to contend that, even in the absence of a specific provision under the Code of Civil Procedure for restoration of an appeal dismissed as not pressed, the court is empowered to invoke its inherent power under Section 151 of CPC to render justice to the parties. Para 4 of the judgment, which is contextually relevant, is extracted hereunder:-

“4. It is evident from the judgment delivered by the lower appellate court on 30.09.2010 that A.S.No.70 of 2004 was dismissed as not pressed in the light of the memo filed by the petitioner that he is not pressing the appeal. Within thirty days thereafter, the petitioner had filed I.A.No.1750 of 2010 to restore the appeal to file. That application was dismissed by order passed on 08.02.2011 on the short ground that as the appeal was dismissed as not pressed, there is no question of resotring the appeal to file. The order passed by the court below cannot in my opinion be sustained. Though the application was styled as one filed under Order IX R.9 of the Code of Civil Procedure , the appellate court should have in my opinion exercised the power conferred on it under S.151 of the to recall the judgment dismissing the appeal as not pressed. A court always has the power to recall an order which has the effect of perpetrating