SC: Parties shouldn’t be deprived of their right to prosecute appeal on merits for Non-Appearance of their Lawyers

By Lovisha Aggarwal | February 06, 2019

COURT:        Supreme Court of India

CASE:            The Commissioner, Mysore Urban Development Authority vs. S.S. Sarvesh (decided on February 05, 2019)

FACTS:         The appellant­ had filed a first appeal. The appellant’s counsel did not appear when theappeal was called on for hearing and, therefore, the Appellate Court dismissed the appeal in default. The Appellant, therefore, filed an Application before the Appellate Court praying forrestoration of their appeal for its hearing on the merits. The Application was dismissed by the court.

LAW POINT:          The Courts should   have seen that the first appeal is a valuable right of the appellant and, therefore, the Appellant was entitled for an opportunity to prosecute their appeal on merits.

To do substantial justice to both the Parties to the lis, 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.

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 Apex Court referred to the Observations madeby Vivian Bose J. while dealing with a Case of Order 9 in Sangram Singh vs. Election Tribunal, Kotah (AIR 1955 SC 425):

“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.”

Read the complete Judgement here