# Sardar Gurtahal Singh Petitionner v. Anand Singh Jagdhari and 8 others

- **Citation:** (2011) 1 ILRA 247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-03-15
- **Case number:** Second Appeal No. 8 of 2006
- **Bench:** Shabihul Hasnain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sardar-gurtahal-singh-petitionner-v-anand-singh-jagdhari-and-8-others-41854
- **Pages:** 4

## Text

1 All] Sardar Gurtahal SIngh V. Anand Singh Jagdhari and others
247
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2011

BEFORE
THE HON'BLE SHABIHUL HASNAIN, J.

Second Appeal No. 8 of 2006

Sardar Gurtahal Singh ...Petitionner
Versus
Anand Singh Jagdhari and 8 others

 ...Respondents

Code of Civil Procedure-Order 41 Rule
19-Re-admission
of
Appeal-Second
Appeal dismissed in defaults-restoration
application-prayer
objected
as
no
question
of
exercising
inharant
jurisdiction-Held-mis-concieved
unless
appeal restored-can not be listed for readmission-the provisions of order 41
Rule 19 be construcd and understand in
the sense-more practicable reasonable
and legal-

Held: Para 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 can not 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.
Case law discussed:
AIR (35) 1948 Awadh 116 (CN 43) Gajraj
Singh vs. Suraj Bux singh and another

(Delivered by Hon'ble Shabihul Hasnain, J.)

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
condonation 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
condonation 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 readmit 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.
248 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
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 AIR (35) 1948 Awadh
116 (CN 43) Gajraj Singh vs. Suraj Bux
Singh and another. 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
C.P.C., the Court could restore the appeal
in exercise of its inherent powers. As
pointed
out
by
Chitaley
in
his
Commentary
on
Section
151,
Civil
Procedure Code, 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 C.P.C. 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 can not
exercise inherent powers. The second
appeal can not 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 futher argued
that now the courts can not simply restore
the dismissed appeal to its original
number. The appeal will have to be readmitted. 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
1 All] Sardar Gurtahal SIngh V. Anand Singh Jagdhari and others
249
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 requries 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 can
not 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 readmission 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 appeal lies dismissed on that
date. Both the situations can not 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 can not 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.
250 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

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.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2011

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Company Application No. - 15 of 2010

In The Matter Of: Triveni Engineering &
Industries and another
...Applicants

Counsel for the Petitioner:
Sri R.P. Agarwal

Counsel for the Respondent:
Sri S.K. Bisaria

Code of Civil Procedure-Section 148-AMaintainability
of
caveat
application
under Chapter 22 rule 5-relating to
proceeding u/s 394/391 of Company
Act-whether maintainable ? held-'No'
but the provisions of C.P.C. Equally
applicable by virtue of rule 6 of company
Rules-hence caveat lodged u/s 1448-Aheld-proper-even the caveator no right
to claim opportunity of hearing at
preliminary stage of issue notice-but
growing tendency of ignoring caveat by
the Registry as well as of the Counselsundermine
the
dignity
of
Noble
Profession-Court
expressed
its
great
concern by issuing general directions.

Held: Para 8

Now Rule 6 of the aforesaid Rules clearly
provides that the provisions of the code
which means Code of Civil Procedure,
1908 shall apply to all proceedings under
the Act and these Rules. In other words
by virtue of Rule 6 of the aforesaid Rules
provisions of C.P.C. have been made
applicable in respect of all proceedings
taken by parties under the Act or under
the aforesaid Rules. There is no dispute
that an application for acceptance of the
scheme of arrangement under Section
391/394 of the Act is in the nature of
proceedings under the Act/Rules and as
such the applicability of C.P.C. to such
proceedings
cannot
be
ruled
out.
Consequently, the provisions of Section
148A C.P.C. which entitles a party to
lodge a caveat gets attracted enabling
the party concern to lodge a caveat in
respect
of
proceedings/applications
under Section 391/394 of the Act.
Case law discussed:
[2009] 147 Company Cases 677.

(Delivered by Hon'ble Pankaj Mithal, J.)

Re: Civil Misc. Recall Application
No.319680 of 2010

1. The above application has been
filed
by
Ashok
Kumar
Sharma,
Proprietor, A.K. Builders & Suppliers,
Lucknow together with M/s A.K. Builders
& Suppliers claiming to be the unsecured
creditors of the demerged company M/s
Triveni Engineering & Industries Ltd.

2. By the above application they
have prayed for the recall of the order
dated 9.9.2010 passed by me in Company
Application No.15 of 2010 filed under
Section 391/394 of the Companies Act,
1956 for accepting the scheme of
arrangement annexed thereto between the
aforesaid demerged company and the