Professional Documents
Culture Documents
The Commissioner, Mysore Urban Development Authority vs. S.S. Sarvesh
The Commissioner, Mysore Urban Development Authority vs. S.S. Sarvesh
IN
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1463 OF 2019
(Arising out of S.L.P.(C) No.23718 of 2018)
The Commissioner,
Mysore Urban Development
Authority ….Appellant(s)
VERSUS
S.S. Sarvesh ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2019.02.05
2. This appeal is filed against the final judgment
17:38:24 IST
Reason:
1
WWW.LIVELAW.IN
herein.
involved in this appeal, it is necessary to set out a
few relevant facts.
Authority(in short, “the Authority”) is the defendant
whereas the respondent is the plaintiff in the suit
out of which this appeal arises.
No.685/2006) against the appellantAuthority in the
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
referred to as ‘suit land’).
2
WWW.LIVELAW.IN
6. The appellantAuthority, on being served filed
passed a decree against the appellantAuthority in
relation to the suit land.
7. The appellantAuthority felt aggrieved and filed
first appeal (R.A.No.370/2012) under Section 96 of
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,
appeal was called on for hearing and, therefore, the
Appellate Court dismissed the appeal in default.
3
WWW.LIVELAW.IN
Court dismissed the application, which gave rise to
filing of the writ petition by the appellantAuthority
under Article 227 of the Constitution of India before
impugned order, the High Court dismissed the writ
Court, which has given rise to filing of this appeal
Court.
Appellate Court and the High Court were justified in
therefore, justified in refusing to restore their first
appeal.
4
WWW.LIVELAW.IN
M. Nuli, learned counsel for the respondent.
parties and on perusal of the record of the case, we
appellantAuthority(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
Authority.
the appellantAuthority suffered dismissal in default
5
WWW.LIVELAW.IN
on 25.04.2014 because on that day none appeared
for them when the appeal was called on for hearing.
recourse to the provisions of Order 41 Rule 19 and
subject to their making out a sufficient cause which
when the appeal was called on for hearing.
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
appellantAuthority was to file an appeal in the High
6
WWW.LIVELAW.IN
Order 43 Rule 1 (t) of the Code.
Constitution against the order dated 29.06.2016. It
was an error on the part of the appellantAuthority
with a liberty to file an appeal under Order 43 Rule
High Court dismissed the writ petition on merits.
the appeal lies under Order 43 Rule 1(t) of the Code
7
WWW.LIVELAW.IN
Rule 19 of the Code.
18. Be that as it may, in our considered opinion,
the High Court erred in dismissing the writ petition.
been given the indulgence of hearing of their appeal
on merits.
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
observations while dealing with the case arising out
8
WWW.LIVELAW.IN
and read as under:
in consideration and applying the same to the facts
9
WWW.LIVELAW.IN
of this case, we have no hesitation in allowing this
appeal and set aside the impugned order.
seen that the first appeal is a valuable right of the
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 what Justice
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
10
WWW.LIVELAW.IN
than the former.
23. We have perused the application made by the
appellantAuthority for recalling of the order and we
find that it constitutes a sufficient cause within the
Rs.10,000/ payable by the appellantAuthority to
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 allowed.
accordance with law.
11
WWW.LIVELAW.IN
concerned Appellate Court on 05.03.2019 to enable
the Appellate Court to fix a date for hearing of the
involved in the appeal. Let the appeal be heard and
disposed of as expeditiously as possible preferably
within six months from the date of this order.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHEHSWARI]
New Delhi;
February 05, 2019
12