THE COMMISSIONER, MYSORE URBAN DEVELOPMENT AUTHORITYversusS.S. SARVESH

                         [2019] 2 S.C.R. 813                              813


  THE COMMISSIONER, MYSORE URBAN DEVELOPMENT                              A
                   AUTHORITY
                                  v.
                           S.S. SARVESH
                   (Civil Appeal No. 1463 of 2019)
                                                                          B
                        FEBRUARY 05, 2019
                 [ABHAY MANOHAR SAPRE AND
                   DINESH MAHESHWARI, JJ.]
       Code of Civil Procedure, 1908:
       Or.XLI, r.19 and Or.XLIII, r.1(t) – Dismissal in default –         C
Restoration – Dismissal of first appeal filed by the Development
Authority for non-appearance of the counsel – Application filed
seeking recall of the order and restoration of the appeal – Dismissal
by the appellate court – Writ petition by the High Court u/Art. 227
also dismissed – On appeal, held: An order of refusal to re-admit
                                                                          D
the appeal passed by the appellate court u/Or. XLI, r. 19 is made
expressly appealable u/Or. XLIII, r. 1(t) to the High Court – Remedy
of the appellant-Authority was to file an appeal in the High Court
against the order u/Or. XLIII, r. 1 (t) – Appellant-Authority erred in
filing the writ petition u/Article 227 against the order – Furthermore,
the courts below should have seen that the first appeal is a valuable     E
right of the appellant and, thus, the appellant-Authority was entitled
for an opportunity to prosecute their appeal on merits – If the
appellant’s advocate did not appear may be for myriad reasons,
the court could have imposed some cost on them for restoration of
their appeal to compensate the respondent – Application made by
                                                                          F
the appellant-Authority for recalling of the order, constitutes a
sufficient cause within the meaning of Or. XLI, r. 19, and thus, is
allowed, subject to payment of cost of Rs.10,000/- payable by the
appellant-Authority to the respondent – Order of the High Court is
set aside.
      Allowing the appeal, the Court                                      G
      HELD: 1.1 The first appeal filed by the appellant-Authority
suffered dismissal in default because on that day none appeared
for them when the appeal was called on for hearing. Such dismissal
attracted the provisions of Order 41 Rule 19 of the Code of Civil
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                                 813
814               SUPREME COURT REPORTS                   [2019] 2 S.C.R.


A     Procedure, 1908 and, therefore, the appeal could be re-admitted
      for hearing at the instance of the appellant-Authority only by taking
      recourse to the provisions of Order 41 Rule 19 and subject to
      their making out a sufficient cause which prevented them from
      appearing when the appeal was called on for hearing.
      [Paras 13, 14][817-E, F]
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            1.2 An order of refusal to re-admit the appeal passed by
      the Appellate Court under Order 41 Rule 19 of the Code is made
      expressly appealable under Order 43 Rule 1(t) of the Code to
      the High Court. In this case, since the Appellate Court refused
C     to re-admit the appeal and dismissed the application filed by the
      appellant-Authority, the remedy of the appellant-Authority was
      to file an appeal in the High Court against the order
      dated 29.06.2016 under Order 43 Rule 1 (t) of the Code.
      [Para 15][817-G]
D            1.3 The appellant-Authority instead of filing the appeal
      under Order 43 Rule 1(t) of the Code filed the writ petition under
      Article 227 of the Constitution against the order dated 29.06.2016.
      It was an error on the part of the appellant-Authority and the
      High Court should have declined to entertain the writ petition
E     and instead either converted the writ petition into the appeal
      under Order 43 Rule 1(t) of the Code or permitted the
      appellant-Authority to withdraw the writ petition with a liberty to
      file an appeal under Order 43 Rule 1(t) of the Code, as the case
      may be, in its discretion. It was, however, not noticed
F     and the High Court dismissed the writ petition on merits.
      [Para 16][817-H, 818-A-B]
            1.4 The appeal lies under Order 43 Rule 1(t) of the Code
      to the High Court against the order dated 29.06.2016 passed by
      the Appellate Court which dismissed the application made under
      Order 41 Rule 19 of the Code. However, the High Court erred
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      in dismissing the writ petition. The High Court should have
      allowed the writ petition and the appellant-Authority should have
      been given the indulgence of hearing of their appeal on merits.
      [Paras 17, 18][818-C-D]

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     THE COMMISSIONER, MYSORE URBAN DEVELOPMENT                           815
               AUTHORITY v. S.S. SARVESH

      1.5 The Courts below should have seen that the first appeal         A
is a valuable right of the appellant and, therefore, the appellant-
Authority was entitled for an opportunity to prosecute their appeal
on merits. If the appellant’s advocate did not appear may be for
myriad reasons, the Court could have imposed some cost on them
for restoration of their appeal to compensate the
                                                                          B
respondent(plaintiff) instead of depriving them of their valuable
right to prosecute the appeal on merits. The Courts while dealing
with the cases of this nature should to do substantial justice to
both the parties to the lis. Indeed, dismissal of the appeal in default
and dismissal of the appeal on merits makes a difference. The
former dismissal is behind the back of the litigant and latter            C
dismissal is after hearing the litigant. The latter is always preferred
than the former. [Para 22][819-C-E]
       1.6 On perusal of the application made by the appellant-
Authority for recalling of the order it is found that it constitutes a
sufficient cause within the meaning of Or. 41 r. 19, and is thus,         D
allowed, however, subject to payment of cost of Rs.10,000/-
payable by the appellant-Authority to the respondent(plaintiff).
The impugned order is set aside. As a consequence, the
application filed by the appellant is allowed. The first appeal is
accordingly restored to its original number for its hearing on
merits in accordance with law. [Para 23, 24][819-F-G]                     E
      Sangram Singh v. Election Tribunal, Kotah AIR 1955
      SC 425 : 1955 SCR 1 – referred to.
                       Case Law Reference
1955 SCR 1                      referred to              Para 19          F
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1463
of 2019.
      From the Judgment and Order dated 19.02.2018 of the High Court
of Karnataka at Bengaluru in W.P. No. 34313 of 2017.
                                                                          G
     Mahesh Thakur, Shailesh Madiyal, Sudhanshu Prakash,
Mrs.Vipasha Singh, Advs. for the appellant.
    Anand Sanjay M. Nuli, Dharm Singh, Suraj Kaushik, Nanda
Kumar, M/s.Nuli & Nuli, Advs. for the respondent.

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816                 SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A            The Judgment of the Court was delivered by
             ABHAY MANOHAR SAPRE, J. 1. Leave granted.
             2. This appeal is filed against the final judgment and order dated
      19.02.2018 passed by the High Court of Karnataka at Bengaluru in Writ
      Petition No.34313 of 2017 whereby the High Court dismissed the writ
B     petition filed by the appellant herein.
             3. In order to appreciate the short controversy involved in this
      appeal, it is necessary to set out a few relevant facts.
             4. The appellant-Mysore Development Authority(in short, “the
      Authority”) is the defendant whereas the respondent is the plaintiff in
C     the suit out of which this appeal arises.
             5. The respondent filed a civil suit (O.S. No.685/2006) against the
      appellant-Authority in the Court of Principal Senior Civil Judge and Small
      Causes Court, Mysuru. The suit was for declaration of title and permanent
      injunction in relation to the land bearing No. 2442 situated in Vijaynagara,
      2nd stage, Devaraja Mohalla, Mysuru (hereinafter referred to as ‘suit
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      land’).
             6. The appellant-Authority, on being served filed their written
      statement. The parties adduced their evidence. By judgment/decree dated
      20.03.2012, the Trial Court decreed the respondent’s suit and passed a
      decree against the appellant-Authority in relation to the suit land.
E
             7. The appellant-Authority felt aggrieved and filed first appeal
      (R.A.No.370/2012) under Section 96 of the Code of Civil Procedure,
      1908 (hereinafter referred to as “the Code”) in the Court of Principal
      District and Sessions Judge, Mysuru. This appeal was listed for hearing
      on 25.04.2014. On that day, the appellant’s counsel did not appear when
F     the appeal was called on for hearing and, therefore, the Appellate Court
      dismissed the appeal in default.
             8. The appellant-Authority, therefore, filed an application before
      the Appellate Court praying for recall of the order dated 25.04.2014 and
      sought restoration of their appeal for its hearing on the merits. By order
G     dated 29.06.2016, the Appellate Court dismissed the application, which
      gave rise to filing of the writ petition by the appellant-Authority under
      Article 227 of the Constitution of India before the High Court of
      Karnataka at Bengaluru. By impugned order, the High Court dismissed
      the writ petition and affirmed the order of the Appellate Court, which
      has given rise to filing of this appeal by way of special leave by the
H     defendant in this Court.
    THE COMMISSIONER, MYSORE URBAN DEVELOPMENT                                 817
   AUTHORITY v. S.S. SARVESH [ABHAY MANOHAR SAPRE, J. ]

        9. So, the short question, which arises for consideration in this      A
appeal, is whether the Appellate Court and the High Court were justified
in dismissing the application (M.A.No.77/2014) filed by the appellant-
Authority(defendant) and were, therefore, justified in refusing to restore
their first appeal.
        10. Heard Mr. Mahesh Thakur, learned counsel for the appellant-        B
Authority and Mr. Anand Sanjay M. Nuli, learned counsel for the
respondent.
        11. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow the appeal, set aside
the impugned order and also the order dated 29.06.2016 passed by the
Principal District and Sessions Judge in M.A. No.77 of 2014 and, in            C
consequence, allow the application filed by the appellant-
Authority(defendant) and recall the order dated 25.04.2014 passed by
the Appellate Court.
        12. At the outset we consider it apposite to clarify one legal
position, which was rightly brought to our notice by the learned counsel       D
for the appellant-Authority.
        13. The first appeal (R.A. No.370/2012) filed by the appellant-
Authority suffered dismissal in default on 25.04.2014 because on that
day none appeared for them when the appeal was called on for hearing.
        14. Such dismissal attracted the provisions of Order 41 Rule 19 of     E
the Code and, therefore, the appeal could be re-admitted for hearing at
the instance of the appellant-Authority only by taking recourse to the
provisions of Order 41 Rule 19 and subject to their making out a sufficient
cause which prevented them from appearing on 25.04.2014 when the
appeal was called on for hearing.
                                                                               F
        15. An order of refusal to re-admit the appeal passed by the
Appellate Court under Order 41 Rule 19 of the Code is made expressly
appealable under Order 43 Rule 1(t) of the Code to the High Court. In
this case, since the Appellate Court refused to re-admit the appeal and
dismissed the application filed by the appellant-Authority, the remedy of
the appellant-Authority was to file an appeal in the High Court against        G
the order dated 29.06.2016 under Order 43 Rule 1 (t) of the Code.
        16. The appellant-Authority instead of filing the appeal under Order
43 Rule 1(t) of the Code filed the writ petition under Article 227 of the

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818                 SUPREME COURT REPORTS                       [2019] 2 S.C.R.


A     Constitution against the order dated 29.06.2016. It was an error on the
      part of the appellant-Authority and the High Court should have declined
      to entertain the writ petition and instead either converted the writ petition
      into the appeal under Order 43 Rule 1(t) of the Code or permitted the
      appellant-Authority to withdraw the writ petition with a liberty to file an
      appeal under Order 43 Rule 1(t) of the Code, as the case may be, in its
B
      discretion. It was, however, not noticed and the High Court dismissed
      the writ petition on merits.
             17. We, therefore, clarify the legal position that the appeal lies
      under Order 43 Rule 1(t) of the Code to the High Court against the
      order dated 29.06.2016 passed by the Appellate Court which dismissed
C     the application made under Order 41 Rule 19 of the Code.
             18. Be that as it may, in our considered opinion, the High Court
      erred in dismissing the writ petition. The High Court should have allowed
      the writ petition and the appellant-Authority should have been given the
      indulgence of hearing of their appeal on merits.
D            19. Indeed, this case reminds us of the subtle observations of the
      learned Judge-Vivian Bose, J., which His Lordship made in one of the
      leading cases of this Court in Sangram Singh vs. Election Tribunal,
      Kotah, AIR 1955 SC 425.
             20. Vivian Bose J., speaking for the Bench, in his distinctive style
E     of writing made the following observations while dealing with the case
      arising out of Order 9 and reminded the Courts of their duty while deciding
      the case. The observations are apt and read as under:
             “A code of procedure must be regarded as such. It is
             procedure something designed to facilitate justice and
             further its ends: not a penal enactment for punishment and
F
             penalties; not a thing designed to trip people up. Too
             technical a construction of sections that leaves no room for
             reasonable elasticity of interpretation should therefore be
             guarded against (provided always that justice is done to
             both sides) lest the very means designed for the furtherance
G            of justice be used to frustrate it. Our laws of procedure are
             grounded on a principle of natural justice which requires
             that men should not be condemned unheard, that decisions
             should not be reached behind their backs, that proceedings


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    THE COMMISSIONER, MYSORE URBAN DEVELOPMENT                                 819
   AUTHORITY v. S.S. SARVESH [ABHAY MANOHAR SAPRE, J. ]

        that affect their lives and property should not continue in            A
        their absence and that they should not be precluded from
        participating in them. Of course, there must be exceptions
        and where they are clearly defined they must be given effect
        to. But taken by and large, and subject to that proviso, our
        laws of procedure should be construed, wherever that is
                                                                               B
        reasonably possible, in the light of that principle.”
        21. Keeping the aforementioned statement of law in consideration
and applying the same to the facts of this case, we have no hesitation in
allowing this appeal and set aside the impugned order.
        22. In our view, the Courts below should have seen that the first
appeal is a valuable right of the appellant and, therefore, the appellant-     C
Authority was entitled for an opportunity to prosecute their appeal on
merits. If the appellant’s advocate did not appear may be for myriad
reasons, the Court could have imposed some cost on them for restoration
of their appeal to compensate the respondent(plaintiff) instead of depriving
them of their valuable right to prosecute the appeal on merits. This is        D
what Justice Vivian Bose has reminded to the Courts while dealing with
the cases of this nature in Sangram Singh (supra) to do substantial
justice to both the parties to the lis. Indeed, dismissal of the appeal in
default and dismissal of the appeal on merits makes a difference. The
former dismissal is behind the back of the litigant and latter dismissal is
after hearing the litigant. The latter is always preferred than the former.    E
        23. We have perused the application made by the appellant-
Authority for recalling of the order and we find that it constitutes a
sufficient cause within the meaning of Order 41 Rule 19 of the Code.
The application, therefore, deserves to be allowed. However, it is subject
to payment of cost of Rs.10,000/- payable by the appellant-Authority to        F
the respondent(plaintiff). Let the cost be paid before hearing of the
appeal.
        24. In view of the foregoing discussion, the appeal succeeds and
is accordingly allowed. The impugned order is set aside. As a
consequence, the application filed by the appellant (MA No.77/2014) is         G
allowed. The R.A. 370/2012 is accordingly restored to its original number
for its hearing on merits in accordance with law.



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820                SUPREME COURT REPORTS                    [2019] 2 S.C.R.


A            25. Parties are directed to appear before the concerned Appellate
      Court on 05.03.2019 to enable the Appellate Court to fix a date for
      hearing of the appeal on merits uninfluenced by any of our observations
      on the merits because we have not applied our mind to the merits of the
      controversy involved in the appeal. Let the appeal be heard and disposed
      of as expeditiously as possible preferably within six months from the
B
      date of this order.

      Nidhi Jain                                                 Appeal allowed.




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