Case Note & Summary
The appellant, Shivaji Fakira Bhambare, was the defendant in Special Civil Suit No.41 of 2004 filed by the respondent, Dashrath Baburao Naik, seeking specific performance of a contract dated 23rd April 2004 regarding suit land measuring 1H 83R. The suit was decreed on 1st April 2006. The appellant filed First Appeal No.1638 of 2006 before the High Court. Pending appeal, the respondent filed Civil Application No.836 of 2011 seeking an injunction to restrain the appellant from creating third party rights in the suit property. On 27th April 2011, the High Court passed an order recording the statement of the appellant's counsel that the appellant did not intend to create third party rights until disposal of the appeal. This statement was accepted as an undertaking. Subsequently, the appellant created third party rights in breach of the undertaking. The First Appeal was dismissed for breach of the undertaking. The appellant then filed Regular Civil Appeal No.78 of 2012 before the District Judge, which was also dismissed. The appellant filed an application for restoration of that appeal, which was refused by the District Judge on 10th December 2021. The appellant challenged this refusal in the present Appeal from Order No.71 of 2022 under Order 43 Rule 1(r) CPC. The High Court held that the undertaking was binding and its breach justified the dismissal. The court found no error in the District Judge's order refusing restoration. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Restoration of Appeal - Breach of Undertaking - Order 43 Rule 1(r) CPC - The appellant's appeal was dismissed for breach of an undertaking given to the High Court not to create third party rights in the suit property. The District Judge refused to restore the appeal. The High Court held that the undertaking was binding and its breach justified the dismissal. The appeal against the refusal to restore was dismissed. (Paras 1-10) B) Civil Procedure - Undertaking to Court - Binding Nature - The undertaking given by the appellant's counsel on instructions was accepted by the court and became an order. Breach of such undertaking is a serious matter and can lead to dismissal of the appeal. (Paras 3-5) C) Civil Procedure - Restoration of Appeal - Inherent Power - The court has inherent power to restore an appeal dismissed for default, but not when the dismissal is for breach of an undertaking. The remedy lies in challenging the order of dismissal. (Paras 6-9)
Issue of Consideration
Whether the learned District Judge erred in refusing to restore the Regular Civil Appeal No.78 of 2012, which was dismissed for breach of an undertaking given to the High Court.
Final Decision
Appeal dismissed. No order as to costs.
Law Points
- Undertaking to court is binding
- Breach of undertaking justifies dismissal of appeal
- Order 43 Rule 1(r) CPC
- Restoration of appeal dismissed for default
- Inherent power of court to restore appeal
