I, therefore, come to the conclusion that the word 're-admission' in the aforesaid rule should be interpreted as 'restoration' for all practical purposes.
12. The second objection raised by Sri P.V. Chaudhary is that even if the order is restored the interim order, if any granted earlier should not be revived automatically. This argument also does not stand to reason. Once the Court is satisfied that there was sufficient reason under Order 9 Rule 13 and the Court feels that the Appellant or any other party had sufficient reason for applying for restoration then there cannot be any half measures. It is a subjective satisfaction of the Court which will vary from case to case. The requirement in the Rule 19 is that it should be proved that the Appellant was prevented from coming to the Court when the appeal was called for hearing. This clearly shows that the grounds for restoration have to be made out by the Appellant and if the Court is satisfied then there is no reason that the Appellant should be put to any kind of penalty by not giving him a status which he was enjoying prior to the dismissal of his case in default.
13. Accordingly, this Court feels that when the matters are restored they should be restored to original number and to the same status to which the Petitioner/Appellant was enjoying on the date of dismissal in default.
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Second Appeal No. 8 of 2006
Decided On: 15.03.2011
Sardar Gurtahal Singh Vs. Anand Singh Jagdhari and Ors.
Hon'ble Judges/Coram:
Shabihul Hasnain, J.
Citation: 2011(4) Civil court cases 730 ALL
1. Heard Sri Munawar Sultan learned Counsel for the Appellant and Sri P.V. Chaudhary for the opposite parties.
2. This second appeal was dismissed in default on 9.10.2009. The Appellant moved an application for its restoration on 13.1.2010 with an application for condo nation of delay under Section 5 of the Limitation Act. He has explained the reasons for moving the application with delay. Objection was invited from Sri P.V. Chaudhary on application for condo nation of delay. Sri Chaudhary has raised objection that the delay should not be condoned.
3- Sri P.V. Chaudhary has raised another legal objection that in second appeal application for restoration can only be moved under Order 41 Rule 19. It reads as follows:
19. Re-admission of appeal dismissed for default.--Where an appeal is dismissed under Rule 11, Sub-rule (2) or Rule 17, 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.
4. Sri P.V. Chaudhary says that the application is not in a proper format. There is no provision for recall of an order dismissing the appeal in default. The application can only be moved for 're-admission'. In his support he has shown a case law Gajraj Singh v. Suraj Bux Singh and another, AIR 1948 Awadh 116 (CN 43). In paragraph No. 43 of this very old judgment it has been stated as follows:
(43) It was argued by the learned Counsel for the applicant that apart from the provisions of Order 41, Rule 19 Code of Civil Procedure, the Court could restore the appeal in exercise of its inherent powers. As pointed out by Chitaley in his Commentary on Section 151, Code of Civil Procedure, it has been held by the High Courts of Allahabad, Calcutta, Lahore, Madras, Patna, Rangoon, and the Judicial Commissioner's Courts of Oudh and Sind that there is no inherent power to set aside an ex parte decree, or restore a suit dismissed for default, except under the circumstances and conditions mentioned in Order 9, Rule 13 and Rule 19 respectively. The same remarks would apply to the provisions applicable to restoration of appeals under Order 41, Rule 19 Code of Civil Procedure I agree with the view thus stated.
5. This judgment which has not been over-ruled till date observes that the High Court does not have any inherent powers for restoration of a second appeal. The application has to be moved under Order 41 Rule 19 and it has to fulfill the conditions laid down in order 9 Rule 13 which is the basic law for restoration of cases dismissed in default or ex-parte. On this count Sri P.V. Chaudhary says that the application moved by the Appellant should be thrown out as it is not in the proper format and the Court cannot exercise inherent powers. The second appeal cannot be restored to its original number.
6. The Appellant counsel Sri Munawar Sultan argued that the application which he has moved contains the reasons which are required under Order 9 Rule 13. The Court is satisfied with this aspect of the matter. He further says that he agrees that the Court does not have inherent powers of restoration of an appeal which is dismissed in default and that is the reason that a formal application detailing all the facts have been moved before the Court. He is not invoking the Court's inherent powers in this regard. He says that the application which has been moved by him in-fact contains all the ingredients required under Order 41 Rule 19. The only deficiency in his application is the heading which ought to have given the exact provision under which he was moving the application before the Court.
7. The Court feels that it may not have inherent powers of restoration but it does have the inherent power of correcting the heading of an application. This lapse on the part of the Appellant can be condoned and the application can be treated maintainable because of its contents as a proper application under Order 41 Rule 19.
8. Mr. Chaudhary has further argued that now the Courts cannot simply restore the dismissed appeal to its original number. The appeal will have to be re-admitted. Under Order 41 Rule 9 which has already been quoted supra. The argument of Sri P.V. Chaudhary has raised an important question which needs to be answered. A number of counsel including Senior Advocate Mohd. Arif Khan and Sri B.K. Saxena stood up to assist the Court. They have submitted that Order 41 Rule 19 needs fresh look and the word 're-admission' also requires to be interpreted in a manner so as to harmonize their purpose of the rule in consonance with the provisions of Section 100 Code of Civil Procedure.
9. After hearing the counsel the Court feels that if the word 're-admission' is given a literal interpretation then it will mean that the earlier order of Hon'ble Judge admitting the petition will be subjected to a review by the Judge who is restoring the appeal. This can never be the intention of Order 41 Rule 9. 'Re-admission' of an already admitted appeal on substantial questions of law will be inherently contradictory, it will amount to an indirect 'review'. This cannot stand to logic. Moreover, if strict interpretation as proposed by Sri P.V. Chaudhary is adhered to then the question will crop up as to how the Appellant counsel can argue for re-admission in an appeal which stands dismissed on that particular date. Unless the petition is restored to its original number no argument of any kind is possible. So a natural corollary of this argument will be that the petition has to be restored before any kind of order is passed either of admission or of hearing in the matter.
10. Law is a codified common sense. Nothing can be construed to be illogical or unreasonable. If the matter is restored and listed for admission again then it amounts to review and if directly a counsel is required to argue on admission then he will be hampered because the appear lies dismissed on that date. Both the situations cannot be permitted. Therefore, the Order 41 Rule 19 will have to be construed and understood in the sense which is more practical, reasonable as well as legal.
11. I, therefore, come to the conclusion that the word 're-admission' in the aforesaid rule should be interpreted as 'restoration' for all practical purposes.
12. The second objection raised by Sri P.V. Chaudhary is that even if the order is restored the interim order, if any granted earlier should not be revived automatically. This argument also does not stand to reason. Once the Court is satisfied that there was sufficient reason under Order 9 Rule 13 and the Court feels that the Appellant or any other party had sufficient reason for applying for restoration then there cannot be any half measures. It is a subjective satisfaction of the Court which will vary from case to case. The requirement in the Rule 19 is that it should be proved that the Appellant was prevented from coming to the Court when the appeal was called for hearing. This clearly shows that the grounds for restoration have to be made out by the Appellant and if the Court is satisfied then there is no reason that the Appellant should be put to any kind of penalty by not giving him a status which he was enjoying prior to the dismissal of his case in default.
13. Accordingly, this Court feels that when the matters are restored they should be restored to original number and to the same status to which the Petitioner/Appellant was enjoying on the date of dismissal in default.
14. However, in the present case the facts are different.
15. It transpires from the record that the case was lastly listed on 27.7.2007. On that date the interim order was not extended till the dismissal of the petition.
16. Accordingly, let the petition be restored to its original number. Since it was already admitted It will be treated as having been admitted.
17. Let it be listed in the next cause list for hearing on merits.
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