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In case of dismissal of appeal or proceedings for default- Courts shall be liberal in restoring the proceedings and provide opportunity to the parties to contest the matter on merits
The Commissioner, Mysore Urban Development Authority Vs S S Sarvesh
CIVIL APPEAL No. 1463 OF 2019 (Arising out of S.L.P.(C) No.23718 of 2018)
About/from the judgment:
“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.”
Emphasizing the need to do 'substantial justice', the Supreme Court observed that valuable right of a litigant to prosecute an appeal should not be deprived merely because of non-appearance of his lawyer.
In this case, the District court dismissed the appealed filed by Mysore Urban Development Authority as its counsel did not appear when the appeal was called on for hearing. The application filed seeking recall of the order and restoration of the appeal for its hearing on the merits was dismissed by the Court. The High court also affirmed this order.
In the appeal, the bench quoted the following observations by Justice Vivian Bose in Sangram Singh vs. Election Tribunal,Kotah.
"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. 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 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 that affect their lives and property should not continue in 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 reasonably possible, in the light of that principle."
The bench said that the instant appeal should have been restored by making the appellant pay some cost to compensate the respondent. The bench said:
"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 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."
The bench then allowed their application seeking recalling of the order, subject to payment of cost of Rs.10,000.
This judgment also clarified the legal position that the appeal lies under Order 43 Rule 1(t) of the Code to the High Court against the order passed by the Appellate Court which dismissed the application made under Order 41 Rule 19 of the Code (order of refusal to readmit the appeal)
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