Samim Ansari vs Naushad Shah

Mr. Shree Chandrashekhar, J. - Aggrieved by order dated 05.01.2011 in Misc. Case No. 05 of 2010 whereby, application seeking restoration of Title Appeal No. 01 of 2007 has been dismissed for non-prosecution, the present writ petition has been filed.

At the outset, the learned counsel for the respondents raising a preliminary objection to the maintainability of the writ petition submits that against the order passed under Order 41, Rule 19 C.P.C., an appeal would lie under Order 43, Rule 1 (t) C.P.C.

Rule 19 to Order 41 C.P.C. reads as under:

"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."

Order 43, Rule 1 (t) C.P.C. reads as under:

"An order of refusal under rule 19 Order 41 to re-admit, or under rule 21 of Order 41 to re-hear an appeal."

A perusal of the above provision indicates that the Court may re-admit the appeal if it is proved that the appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing or if the appellant had failed to deposit the sum so required. The provision under Order 41, Rule 19 C.P.C. preserves the power of the Appellate Court to restore the appeal for re-admission. Against an order on an application under Order 41, Rule 19 C.P.C., an appeal would lie under Order 43, Rule 1 (t) only if the order passed under Order 41, Rule 19 C.P.C. is an order of refusal, on merits of the matter. An order dismissing the application under Order 41, Rule 19 C.P.C. for non-prosecution, is not an order of refusal on merits and therefore, appeal under Order 43, Rule 1 (t) C.P.C. would not lie and the writ petition is maintainable.

The petitioner is aggrieved by order dated 05.01.2011 in Misc. Case No. 05 of 2010 whereby, the application seeking restoration of Title Appeal No. 01 of 2007 has been dismissed for non-prosecution. Order dated 05.01.2011 discloses that Hazari on behalf of the appellant was filed. The said order does not disclose that the appellant/petitioner remained absent on previous occasions also. Considering the fact that valuable interest of the petitioner is involved in Title Appeal No. 01 of 2007, the petitioner should be granted an opportunity to prosecute Misc. Case No. 05 of 2010, on merits. Accordingly, order dated 05.01.2011 is hereby set-aside and Misc. Case No. 05 of 2010 is restored to its original file however, subject to payment of Rs. 5000/- to the respondent no. 1.

I.A. No. 6808 of 2013 is allowed. I.A. No. 4069 of 2015 stands disposed of with liberty to the petitioner to file appropriate application in Execution Case No. 02 of 2007, in accordance with law.