Ram Nandan Singh Vs. Ram Nandan Singh and ors. - Court Judgment

Excerpt:
(a) code of civil procedure, 1908 - order xli, rule 19-appeal--restoration of--an appeal can be restored if sufficient cause has been shown by appellant--since no such sufficient cause within the meaning of order xli, rules 19 cpc established by petitioner excepting his negligence in carrying out the earlier orders of the court--held, restoration of appeal not to be allowed.(b) code of civil procedure, 1908 - section 148 and order xli, rule 19--exercising of power under section 148--once the appellate court entertained the application under order xli, rule 19 of cpc for restoration of appeal--it must have thereafter refrained from exercising its power under section 148 of cpc. - - the appellant once again failed in depositing the costs within the time granted by the court and once again..... s.k. katriar, j.1. heard learned counsel for the parties. the plaintiff-respondent is the petitioner this civil revision application is directed against the order dated 24-8-2000, passed by the learned additional district judge 3rd court, begusarai, in misc. case no. 1 of 1996, whereby he has restored mta no. 36 of 1989 to its original file.2. the present petitioner had instituted title suit no. 24 of 1960/12 of 1989 in the civil court of begusarai which was decreed. the present opposite parties had preferred title appeal no. 36 of 1989 in the court of learned district judge, begusarai. by order dated 1-12-1995, the same was dismissed for non-prosecution on account of non-appearance of the learned counsel for the appellants. the appellants thereafter, filed an application under order.....

Judgment:

S.K. Katriar, J.

1. Heard learned Counsel for the parties. The plaintiff-respondent is the petitioner This civil revision application is directed against the order dated 24-8-2000, passed by the learned Additional District Judge 3rd Court, Begusarai, in Misc. Case No. 1 of 1996, whereby he has restored MTA No. 36 of 1989 to its original file.

2. The present petitioner had instituted Title Suit No. 24 of 1960/12 of 1989 in the civil Court of Begusarai which was decreed. The present opposite parties had preferred Title Appeal No. 36 of 1989 in the Court of learned District Judge, Begusarai. By order dated 1-12-1995, the same was dismissed for non-prosecution on account of non-appearance of the learned Counsel for the appellants. The appellants thereafter, filed an application under Order XLI, Rule 19 CPC before the same Court for restoration of the appeal to its original file which was registered as Misc. Case No. 1 of 1996. The same was allowed by order dated 9-9-1998, subject to payment of costs of Rs. 250/-. The cost was not deposited within the time granted by the Court and, therefore, the order of restoration did not take effect. The appellants thereafter, filed an application under Section 148 CPC on 31-5-2000 stating therein that the amount of costs had been deposited on that date and therefore, the appeal may be restored. The same was allowed by order dated 28-6-2000, whereby the appellants' application dated 31-5-2000 was allowed on payment of costs of Rs. 2000/- to be deposited within one week subject to which the appeal stood restored to its file. The appellant once again failed in depositing the costs within the time granted by the Court and once again an application was filed under Section 148 CPC on 17-8-2000, standing therein that the costs of Rs. 2000/- had been deposited on that date and, therefore, the appeal may be restored to its file. After hearing the learned Counsel for the parties the learned Additional District Judge 3rd Court, Begusarai, has allowed the same by the impugned order dated 24-8-2001.

3. While assailing the validity of the impugned order, learned Counsel for the petitioner submits that in the facts and circumstances of the present case the power under Section 148 CPC was not available to the appellants. He relies on a Division Bench Judgment of this Court reported in

: AIR1959Pat181 Ramdhani Ram v. Sital Prasad Ram, as well as the judgment of a learned Single Judge of this Court reported in A.I.R. 1925 Patna 153 Sheikh Hamidur Rahman v. Shahanand Das. Standing the same contention in different words, learned Counsel for the petitioner next submits that in the facts and circumstances of the present case, the Court could not have entertained their application under Section 148 CPC. He relies on the judgment of a learned Single Judge of Calcutta High Court in A.I.R. 1965 Calcutta 354 Tarapada v. Nepal Gazi, and the judgment of a learned Single Judge of Kerala High Court A.I.R. 1973 Kerala 185, S.M. Bhatta v. A. Beary, He submits that the impugned order falls far short of the requirement of Order XLI, Rule 19 read with Section 148 CPC. In other words he assails it on the ground of propriety of the order. He lastly submits that the orders were instead appealable.

4. Learned Counsel for the opposite parties submits in oppositioin that the provisions of Section 148 CPC are wide enough to cover the impugned order. He

relieson the judgment of the Supreme Court reported in : [1961]3SCR763 , Mahanth, Ram Das v. Ganga Das. He next submits that the orders dated 9-9-1998,28-6-2000 and 24-8-2000 are not final orders and are, therefore, not appealable within the meaning of Order XLIIII, Rule 1 CPC.

5. Having considered the rival submissions, I am of the view that this Civil Revision Application is fit to be allowed. Learned Counsel for the petitioner is right in his submission that once the appellate Court entertained the application under Order XLI, Rule 19 read with Section 148 CPC and passed the order dated 9-9-1998, it should have thereafter, refrained from exercising its powers under Section 148 CPC. Learned Counsel for the petitioner has, therefore, rightly relied on the judgment of this Court reported in Sheikh Hamidur Rahman v. Shahanand Das (supra), as well as the judgment of the Calcutta High Court in Tarapada v. Nepal Gazi (supra) and that of the Kerala High Court in S.M. Bhatta v. A. Beany (supra). The Division Bench judgment of this Court in Ramdhani Ram v. Sital Prasad Ram (supra) appears to me to be inapplicable to the facts and circumstances of the present case, inasmuch as the same dealt with a judgment and decree which had become final in view of the default/failure to deposit as per the decree. That case, therefore, stood on a different footing.

6. The judgment of the Supreme Court in Mahanth Ram Das v. Ganga Das (supra), relied on by learned Counsel for the opposite parties is equally inapplicable to the facts and circumstances of the present case. In that case, the High Court had during the pendency of the appeal passed peremptory order granting time to pay the deficit Court fee. Before expiry of the time, the applicant had filed an application for extending the time which was disallowed. The Supreme Court on appeal held that Sections

148, 148 & 151 could be invoked by the appellant when the time had not actually expired. An order extending time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired. The said provisions clothed the High Court with ample powers to do justice to a litigant if sufficient cause was made out for extension. In the instant case, on the other hand, the applications on all the occasions had been filed much after the time granted by the Court had expired. Furthermore, no sufficient cause has been shown by the opposite parties for restoration and extension of time. I have no doubt that seeking extension of time in the present case was an abuse of the process of the Court.

7. Learned Counsel for the petitioner is further right in assailing the impugned order on the ground of its propriety. The provisions of Order 41, Rule 19 CPC are set out herein below for the facility of quick reference:

19. Re-admission of appeal dismissed for default.--Where an appeal is dismissed under Rule 11, Sub-rule (2), or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

It is manifest from a plain reading of this provision that an appeal can be restored if sufficient cause has been shown by the appellant. It is manifest from a plain reading of the impugned order that no such sufficient cause within the meaning of Order XLI, Rule 19 CPC has been shown by the petitioner excepting his negligence in carrying out the earlier orders of the Court, and none has been discussed in the impugned order.

8. In that view of the matter, this application is hereby allowed. The impugned order dated 24-8-2001, passed by the learned 3rd Additional District Judge, Begusarai, is hereby set aside. The order dated 1-12-1995 passed by the learned Court of appeal below automatically stands revived.