Tara Mani and Others vs Vidya Devi and Others

Mohammad Yaqoob Mir, J.—APCIV No. 83/2013 filed under Order XLI Rule 19 of the Code of Civil Procedure for re-admission of

Civil Second Appeal has been dismissed by learned Single Judge vide detailed order dated 20th February, 2014 holding therein that the provisions

of Order XLI Rules 11 and 17 have no application, therefore, application under Order XLI Rule 19 is not maintainable. CMA No. 03/2013

seeking leave to lead evidence to establish that the appellants were not represented, too has been dismissed. Maintainability of this Letters Patent

Appeal was questioned in view of amendment in Section 100-A of C.P.C. It was rightly pointed out by learned counsel for the appellant that the

bar contained in Section 100-A is not applicable because by virtue of order impugned application for re-admission of the appeal filed under Order

XLI Rule 19 has been dismissed which is an appealable order covered by Order XLIII(t). Section 100-A C.P.C. does not bar appeal against

such an order.

Section 100-A, for facility of reference, is quoted in extenso below:

Notwithstanding anything contained in any Letters Patent of the High Court or in any instrument having the force of law or in any other law for the

time being in force in the State, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a High

Court, no further appeal shall lie from the judgment and decree of such Single Judge.

Plain language of Section 100-A will imply that an appeal from an original or appellate decree or order is heard and decided by the Single Judge,

no further appeal shall lie. The order impugned has not been passed in an appeal from an original or appellate decree or order, therefore, bar

contained in Section 100-A of C.P.C. is not applicable. Appeal against such an order is prescribed under Order XLIU(t) of C.P.C. Therefore,

appeal under Clause 12 of the Letters Patent of the High Court is permissible, as such, instant appeal is held to be maintained.

Now the sole question which arises for consideration is as to whether application under Order XLI Rule 19 of C.P.C. providing for re-

admission of the appeal in the facts and circumstances is maintainable or not. The answer has to be in negative for the reasons to follow.

Civil Original Suit instituted was filed on 16th October, 1983 in the Court of Sub Judge, Udhampur seeking declaration to the effect that the

respondents No. 1 and 2 be declared not to be the daughters of Deena Nath. The suit after proper trial has been dismissed. As against the said

judgment and decree of the trial court, Civil 1st Appeal filed has been dismissed. Dissatisfied therewith, appellants therein i.e., appellants and

respondent No. 3 herein filed Civil 2nd Appeal. The appellants were represented by Mr. Sunil Dutt Advocate whereas respondents therein were

represented by Mr. L.K. Sharma Advocate. Learned Single Judge after hearing the learned counsel for the parties, vide detailed order dated 26th

April, 2013, has concluded that no substantial question of law is involved in the Civil 2nd Appeal, accordingly dismissed the same. Sine qua non

for maintaining a Civil Second Appeal is that it must involve a substantial question of law as is mandated by the provisions of Section 100 of

C.P.C.

The appellants including respondent No. 3 herein have, in a very clever manner, made an attempt so as to seek upsetting of the judgment dated

26th April, 2013 by projecting that the appellants except Anant Ram (respondent No. 3 herein) were not represented by the Advocate; as such

even though appeal has been dismissed on merits but as against appellants herein, same has to be construed as dismissal in default under Order

XLI Rule 17 of C.P.C.

It has been projected that all the appellants, in fact, had engaged Shri Som Dutt Advocate who expired. Thereafter son of Shri Som Dutt,

namely, Shri Sunil Dutt Advocate was engaged by respondent No. 3 herein (appellant No. 1 in Civil 2nd Appeal) as his counsel. In short, it only

respondent No. 3 (appellant No. 1 in Civil 2nd Appeal) who has been heard, rest of the appellants who are now appellants herein have not been

heard.

The aforesaid contention has to be rejected on two grounds, namely:

First, from the perusal of the records it appears that it is Anant Ram-appellant No. 1 in the Civil 2nd Appeal (respondent No. 3 herein) who has

been prosecuting the appeal on behalf of all the appellants, that is why Shri Sunil Dut has not submitted before the Court while the order dated

26th April, 2013 was passed that he does not represent other appellants nor any affidavit has been filed on behalf of Shri Sunil Dutt to say that he

did not represent rest of the appellants.

Second, if for arguments sake, contention of the appellants' that Shri Sunil Dutt only represented appellant No. 1-Anant Ram (respondent No. 3

herein) is accepted, still there is no scope for re-admission of Civil 2nd Appeal because after hearing the counsel for Anant Ram Court has

concluded in the judgment that no substantial question of law arise for determination. If for arguments sake, counsel for rest of the appellants in

Civil 2nd Appeal i.e., appellants herein, are heard, it is not open now to opine that substantial question of law arises for determination. In both

cases there is no scope for allowing the application for re-admission of appeal under Order XLI Rule 19 of C.P.C. Instead of playing tricks by

having resort to an extra clever approach, it was appropriate for the appellants to have worked out other remedies as may have been available.

The learned Single Judge has rightly concluded in the order impugned that Order XLI Rules 11 and 17 have no applicability, therefore, no scope

for entertaining the application for re-admission of appeal under Order XLI Rule 19 of C.P.C.

For the stated reasons, the appeal being without merit is dismissed.