Khema and ors. Vs. Smt. Ram Dei and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....ordersatish kumar mittal, j.1. the present s.a.o. has been filed by the appellants against the order dated 11.5.2001 whereby the application filed by them under order 41 rule 19 c.p.c. for readmission of their appeal was dismissed for default on 15.9.1993 as their counsel did not appear at the time of hearing of the appeal.2. in this case, the appellants filed a suit for declaration and possession against the respondents in the year, 1982. the said suit was dismissed on 10.12.1987. against the said judgment and decree, the appellants filed an appeal. on 15.9.1993, the said appeal was dismissed in default as counsel for the appellants did not appear at the time of hearing of the appeal. immediately thereafter on 13.10.1993, the appellants filed an application under order 41 rule 19 c.p.c......

Judgment:
ORDER

Satish Kumar Mittal, J.

1. The present S.A.O. has been filed by the appellants against the order dated 11.5.2001 whereby the application filed by them under Order 41 Rule 19 C.P.C. for readmission of their appeal was dismissed for default on 15.9.1993 as their counsel did not appear at the time of hearing of the appeal.

2. In this case, the appellants filed a suit for declaration and possession against the respondents in the year, 1982. The said suit was dismissed on 10.12.1987. Against the said judgment and decree, the appellants filed an appeal. On 15.9.1993, the said appeal was dismissed in default as counsel for the appellants did not appear at the time of hearing of the appeal. Immediately thereafter on 13.10.1993, the appellants filed an application under Order 41 Rule 19 C.P.C. for readmission of the appeal and deciding the same on merits. In the application, which was supported by an affidavit, it was stated that the appellant could not present before the Court on the date of hearing as he was ill and he failed to send a message to his counsel in this regard. A medical certificate was annexed in this regard. It was further stated that their counsel could not appear in the Court due to his some engagements, as a result of which the appeal was dismissed in default for non-appearance of the applicants and their counsel.

3. The aforesaid application was contested by the respondents. The learned first Appellate court without deciding the said application, on the basis of the affidavits of the parties had framed an issue on that application to the effect whether there were sufficient grounds for restoration of the appeal, dismissed in default on 15.9.1993? On the said issue, the evidence was led. In support of the application, one of the appellants appeared and also produced and proved the medical certificate. The respondents did not lead any evidence. Ultimately vide order dated 11.5.2001, the first Appellate Court dismissed the application filed by the appellants while observing that if one of the appellant was ill, the other appellants could have appeared. It has been further observed that the appellants have tried to misuse and abuse the process of law by stretching the litigation due to their frequent non-appearance in the Court. Therefore, they have failed to prove their bona fide. Against the said order, the instant appeal has been filed.

4. I have heard the counsel for the parties. Counsel for the appellants submitted that the appellant engaged a counsel and if he did not appear on 15.9.1993, then the appellants should not be suffered because of non-appearance of their counsel. Secondly, it has been submitted that within one month, the application for readmission of the appeal was filed and the trial Court had taken a long time for deciding the said application. The learned Counsel further submitted that as far as the applicant is concerned, he has proved on record the medical certificate regarding his illness, therefore, his non-appearance on the date of hearing was not intentional.

5. On the other hand, counsel for the respondents submitted that in this case the appellants have deliberately delayed the matter and they intentionally did not appear before the Court when their appeal came up for hearing. It has been stated that only one appellant was ill and other appellants could have appeared, and a wrong statement had been made before the Court on the ground that the other appellant had died. However, the learned Counsel for the respondents has not disputed that the application for readmission of the appeal was filed by the appellants within a period of thirty days. The learned Counsel submitted that even the application of the appellants for restoration of the appeal was also dismissed in default, however, subsequently the same was restored. This shows the conduct and carelessness of the appellants.

6. After hearing the counsel for the parties, I am of the opinion that this appeal deserves to be allowed. It is always in the interest of justice that the matter should be adjudicated on merits. In case of readmission of appeal dismissed for default when the question arises whether there are sufficient grounds for restoration of appeal, the Court would ordinarily be inclined to restore the appeal unless there has been gross negligence on the part of the party concerned. This not the case here. In this case, the application for restoration was filed within one month.

7. In Shrimati Chander Kanta v. Sulekh Chand Sumer Chand (1978)80 P.L.R. 423, this Court held that a party cannot be made to suffer for negligence of his counsel. In Rafia and Anr. v. Munshilal and Anr. : [1981]3SCR509 , the Hon'ble Apex Court has held that at the time of hearing of the appeal, personal presence of the appellant is neither required nor necessary when he engaged a counsel. So he should not suffer for laches committed by his Advocate.

8. Therefore, in my opinion, the appellate Court has failed to exercise its jurisdiction to restore the appeal on unsustainable ground that on the day the appeal was dismissed in default, the appellant was not present. In these facts and circumstances, the appeal is allowed and the impugned order dated 11.5.2001 passed by the Additional District Judge, Panipat is set aside, and the appeal of the appellants, which was dismissed in default on 15.9.1993, is ordered to be re-admitted to its original number subject to payment of costs of Rs. s1,000/-. Keeping in view the fact that the appeal was filed in the year 1987, the Appellate Court is directed to positively decide the appeal on merit within a period of two months after receipt of certified copy of this order.