Holding

An appeal dismissed on merits may be restored if the applicant provides satisfactory reasons for non‑appearance; dismissal on merits is not a bar to restoration under Order XLI Rule 19 read with Section 151 CPC.

Summary

Sarwan Singh filed a second appeal before the Punjab & Haryana High Court challenging a lower court order. On the scheduled date, the appellant failed to appear, and the High Court dismissed the appeal on its merits for non‑appearance. The appellant then applied under Order XLI Rule 19 read with Section 151 of the Code of Civil Procedure, 1908, explaining that counsel was engaged in another matter and the absence was unintentional. The High Court rejected the restoration application, holding that the appeal had already been decided on merits. The Supreme Court held that the reasons for non‑appearance were valid, and that a dismissal on merits cannot be a ground to refuse restoration under the CPC. Consequently, the Supreme Court set aside the High Court order and directed that the second appeal be restored, allowing the appeals.

Issues considered

Whether an appeal dismissed on merits can be restored under Order XLI Rule 19 and Section 151 of the CPC when valid reasons for non‑appearance are shown.
Whether the fact that an appeal was dismissed on merits is a ground to refuse restoration.

Legislation cited

Code of Civil Procedure, 1908s. Order XLI Rule 19, s. Section 151

Subjects

restoration of appealdefault dismissalCivil Procedure CodeOrder XLI Rule 19Section 151 CPCnon‑appearanceappellate jurisdiction

Judgment

A SARWAN SINGH
v. 't
KISHAN SINGH (DEAD) THR. LRS. AND ORS.

MARCH 26, 2007

B [DR. ARIJITPASAYAT ANDLOKESHWARSINGHPANTA, JJ.]

Code of Civil Procedure, I 908-0rder XL/, Rule I 9-Restoration of
....
appeal dismissed for default-Scope of-,-Held: Appeal is to be restored since ~~-

the reasons were indicated for non appearance when matter was taken up
c and the same are correct-Restoration of appeal cannot be refused merely
because the appeal was dismissed on merits,

Second Appeal was dismissed in default after making observations on 'I
the merits of the case. Application was filed under Order XLI Rule 19 read
D with section 151 CPC to restore the appeal. Reasons for non-appearance on
the date fixed were indicated in the application. High Court dismissed the
application. Hence, the present appeal.
,...,
-~
Allowing the appeal, the Court

E HELD: In the application for restoration the reasons for non-appealflnce
at the time when the matter was taken up had been indicated. The matter was ,
fixed for filing of the vakalatnama of the respondents. There was unintentional
absence and the reason for the same was indicated. High Court has no~found
the reason indicated to be in any manner incorrect or untrue. Merely because
the appeal has been dismissed on merits that could not have been a ground to
F refuse restoration of the appeal. Thus, the impugned order of the High Court ,_
is set aside and the Second Appeal is directed to be restored.
[Paras 7 and 8] [469-G-H; 470-A-B, B-C] ~-·

CIVIL APPELLATE JURISDICTION: CivilAppealNo.1583 of2007. f
;
G From the Final Judgment and Order dated 08.11.2004 of the High Court '•
of Punjab & Haryana at Chandigarh in CM No. 11092-C of2004 in RSA No. r
4802 of2003. l.-
Ajay Majithia, Rajesh Kumar and Dr. Kailash Chand for the Appellant. ~·
.
~

H 468
+
SARWANSINGHv. KTSHANSINGH(DEAD)THR.LRS. {PASAYAT.J.] 469

Arvind Kumar, Laxmi Arvind and Poonam Prasad for the Respondents. A
The Judgment of the Court was delivered by

DR. ARIJIT PASAY AT, J. l. Leave granted.

2. Challenge in these appeals is to the order passed by a learned Single B
Judge of the Punjab and Haryana High Court dismissing the application to
recall the order dismissing the Second Appeal.
~
,. 3. The background facts in a nutshell are as follows:

4. Appellant filed Second Appeal No. 4802/2003 before the High Court c
questioning correctness of the order passed by a learned Second Additional
District Judge, Kapurthala. By the said order the first Appellate Court affirmed
the order of the learned Civil Judge, Junior Division, Kapurthala. The matter
was listed on 8.11.2004. On that day there was no appearance on behalf of
the appellant. The High Court referred to the merits of the case and dismissed
the appeal noting that none appeared for the appellant. It is to be noted that D
the appeal was filed by the defendants.
~
.,.
5. An application in terms ·of Order XLI Rule 19 of the Code of Civil
Procedure, 1908 (in short the 'Code') read with Section 151 of the Code was
filed to restore the appeal for deciding the same on merits. It was indicated
in the application for restoration as to why there was non-appearance on the E
date fixed. In the application it was categorically stated that the matter was
listed at item No.260 before the learned Single Judge. When the matter was
called learned counsel for the appellant was arguing another matter before
a Bench of Hon'ble the Chief Justice. In the case at hand respondents were
..; yet to put appearance. So the assisting counsel was instructed to attend the F
Court to note the next date. By the time the ·assisting counsel reached the
t- Court, the matter had already been taken up and dismissed for want of
prosecution. It is submitted that the High Court did not. take note of the
aforesaid factual aspects and on the contrary dismissed the application for
restoration on the ground that the matter was decided on merits.
G
6. Learned counsel for the respondents submitted that since the matter

- ·!"
had been decided on merits there was no scope for recalling the order.

7. It is to be noted that in the application for restoration the reasons
for non appearance at the time when the matter was taken up had been
H
470 SUPREME COURT REPORTS c20011 4 s.c.~.

A indicated. It was noted that the matter was fixed for filing of the vakalatnama
of the respondents. There was unintentional absence and the reason for the
same was indicated. The High Court has not found the reason indicated to
be in any manner incorrect or untrue. Merely because the appeal has been
dismissed on merits that could not have been a ground to refuse restoration
B of the appeal.

8. As rightly contended by learned counsel for the appellant the reason
for non appearance when the matter was take11 up had been indicated. There
is no dispute that the factual scenario as projected by the appellant was the
correct one. Mere fact that the appeal was dismissed on merits could not have
C been a ground to refuse restoration. Accordingly, we set aside the impugned
order of the High Court and direct restoration of the Second Appeal.

9. The appeals are allowed. There will be no order as to costs.

N.J. Appeals allowed.

;."