Supreme Court Restores Appeal Dismissed in Default: Mysore Urban Development Authority vs. S.S. Sarvesh (2019) INSC 66

Date of the Judgment: 05 February 2019

Citation: (2019) INSC 66

Judges: Abhay Manohar Sapre, J., Dinesh Maheshwari, J.

Can a court deny a litigant the right to have their appeal heard on merits due to a procedural default? The Supreme Court of India recently addressed this question in a case involving the Mysore Urban Development Authority. The core issue was whether the High Court was right in dismissing a writ petition against the order of the Appellate Court, which had refused to restore an appeal dismissed for default. This judgment emphasizes the importance of ensuring that justice is not thwarted by procedural technicalities.

Case Background

The respondent, S.S. Sarvesh, filed a civil suit (O.S. No. 685/2006) against the appellant, Mysore Urban Development Authority, in the Court of Principal Senior Civil Judge and Small Causes Court, Mysuru. The suit sought a declaration of title and a permanent injunction regarding land bearing No. 2442 in Vijaynagara, 2nd stage, Devaraja Mohalla, Mysuru.

The Trial Court decreed the respondent’s suit on 20 March 2012. The appellant, feeling aggrieved, filed a first appeal (R.A. No. 370/2012) in the Court of Principal District and Sessions Judge, Mysuru. This appeal was dismissed in default on 25 April 2014 because the appellant’s counsel did not appear when the appeal was called for hearing.

The appellant then filed an application to recall the dismissal order and restore the appeal. The Appellate Court dismissed this application on 29 June 2016. Subsequently, the appellant filed a writ petition under Article 227 of the Constitution of India before the High Court of Karnataka at Bengaluru, which was also dismissed. This led to the filing of the present appeal before the Supreme Court.

Timeline

Course of Proceedings

The Trial Court initially decreed the suit in favor of the respondent. The appellant then filed a first appeal, which was dismissed due to the absence of their counsel. The application to restore the appeal was also dismissed by the Appellate Court. The High Court dismissed the writ petition filed by the appellant against the Appellate Court’s order. The Supreme Court noted that the High Court should have either converted the writ petition into an appeal under Order 43 Rule 1(t) of the Code of Civil Procedure, 1908, or allowed the appellant to withdraw the writ petition to file an appeal under the said provision.

Legal Framework

The case revolves around the interpretation of Order 41 Rule 19 and Order 43 Rule 1(t) of the Code of Civil Procedure, 1908. Order 41 Rule 19 of the Code deals with the re-admission of appeals dismissed for default. It states that if an appeal is dismissed due to the appellant’s absence, the appellant can apply for re-admission if they can show sufficient cause for their non-appearance.

Order 43 Rule 1(t) of the Code provides for an appeal to the High Court against an order under Order 41 Rule 19 refusing to re-admit an appeal. The Supreme Court clarified that the appellant should have filed an appeal under Order 43 Rule 1(t) of the Code instead of a writ petition under Article 227 of the Constitution of India.

Order 41 Rule 19 of the Code of Civil Procedure, 1908 states:

“Where an appeal is dismissed under rule 11 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.”

Order 43 Rule 1(t) of the Code of Civil Procedure, 1908 states:

“An appeal shall lie from the following orders under the provisions of section 104, namely:- (t) an order under rule 19 of Order XLI refusing to re-admit, or under rule 21 of Order XLI refusing to re-hear, an appeal;”

Arguments

Appellant’s Arguments:

• The appellant argued that the High Court should have either converted the writ petition into an appeal under Order 43 Rule 1(t) of the Code or allowed them to withdraw the writ petition to file an appeal under the said provision.
• The appellant contended that the Appellate Court should have considered the sufficient cause for their absence on the date of hearing and restored the appeal.
• The appellant emphasized that the first appeal is a valuable right and they should be given an opportunity to prosecute it on merits.

Respondent’s Arguments:

• The respondent argued that the High Court was correct in dismissing the writ petition.
• The respondent supported the Appellate Court’s decision to dismiss the application for restoration of the appeal.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. Whether the Appellate Court and the High Court were justified in dismissing the application (M.A. No. 77/2014) filed by the appellant-Authority and were, therefore, justified in refusing to restore their first appeal.

Treatment of the Issue by the Court

Authorities

Judgment

How each authority was viewed by the Court?

• The Supreme Court relied on Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425* to emphasize that procedural laws should facilitate justice and not be used to trip people up.
• The Court interpreted Order 41 Rule 19 of the Code of Civil Procedure, 1908* to mean that an appeal dismissed for default can be restored if sufficient cause is shown for the appellant’s absence.
• The Court clarified that Order 43 Rule 1(t) of the Code of Civil Procedure, 1908* provides the correct remedy for an order refusing to re-admit an appeal under Order 41 Rule 19.

What weighed in the mind of the Court?

The Supreme Court was primarily influenced by the principle that procedural laws should serve justice and not hinder it. The Court emphasized the importance of giving litigants an opportunity to have their cases heard on merits, especially in the case of a first appeal, which is a valuable right. The Court also noted that the High Court should have corrected the procedural error by either converting the writ petition into an appeal or allowing the appellant to withdraw it to file a proper appeal. The Court’s reasoning was driven by the need to ensure that justice is not defeated by technicalities.

The Court considered the alternative interpretation that the High Court was correct in dismissing the writ petition, but rejected it, emphasizing the need to correct procedural errors and ensure that the appellant had an opportunity to be heard on the merits of their case. The Court also noted that the application for recalling the order constituted sufficient cause within the meaning of Order 41 Rule 19 of the Code.

The Supreme Court allowed the appeal, set aside the impugned order, and restored the first appeal to its original number for hearing on merits. The Court also imposed a cost of Rs. 10,000 on the appellant, payable to the respondent, before the hearing of the appeal.

“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 penalties; not a thing designed to trip people up.”

“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 that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them.”

“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.”

The majority opinion was authored by Abhay Manohar Sapre, J., with Dinesh Maheshwari, J., concurring. There were no dissenting opinions.

Key Takeaways

• The first appeal is a valuable right, and litigants should be given an opportunity to have their cases heard on merits.
• Procedural laws should facilitate justice and not be used to trip up litigants.
• Courts should be flexible in interpreting procedural laws to ensure that justice is done to both sides.
• An order refusing to re-admit an appeal under Order 41 Rule 19 of the Code of Civil Procedure, 1908, is appealable under Order 43 Rule 1(t) of the Code.
• High Courts should correct procedural errors by either converting writ petitions into appeals or allowing withdrawal to file proper appeals.

Directions

The Supreme Court directed the following:

• The first appeal (R.A. 370/2012) is restored to its original number.
• The parties are directed to appear before the Appellate Court on 05 March 2019.
• The Appellate Court is to fix a date for hearing the appeal on merits.
• The appeal should be heard and disposed of as expeditiously as possible, preferably within six months from the date of the order.
• The appellant is to pay a cost of Rs. 10,000 to the respondent before the hearing of the appeal.

Specific Amendments Analysis

Omitted as not applicable

Development of Law

The ratio decidendi of this case is that a first appeal is a valuable right and should not be denied due to procedural defaults. The Supreme Court reiterated that procedural laws should be interpreted in a way that facilitates justice and not frustrates it. This judgment reinforces the principle that courts should be flexible and ensure that litigants have an opportunity to be heard on the merits of their cases. This case also clarifies the correct procedure when an appeal is dismissed for default and the remedy available to the appellant.

Conclusion

The Supreme Court’s judgment in The Commissioner, Mysore Urban Development Authority vs. S.S. Sarvesh underscores the importance of the right to appeal and the need for procedural laws to serve justice. The Court set aside the High Court’s order, restored the first appeal, and emphasized that litigants should be given an opportunity to have their cases heard on merits. This decision reinforces the principle that justice should not be thwarted by technicalities and that procedural laws should be interpreted to facilitate the pursuit of justice.