Case Note & Summary
The appellants, original defendants in a suit for damages, filed Regular Civil Appeal against the decree granting damages to the respondents. During the pendency of the appeal, the original respondent Shamrao died. His legal representatives filed an application on 11/01/2002 (Exh.12) to bring their names on record. The application was allowed on the same day, and the appellants were directed to bring the legal representatives on record by 15/02/2002. The appellants failed to do so within the stipulated time. On 19/12/2002, the learned District Judge dismissed the appeal under Order XXXIX Rule 11(1) CPC. The appellants then filed an application under Order XXXIX Rule 11(2) CPC to set aside the dismissal order, which was rejected on 23/04/2013. The appellants challenged this rejection in the present appeal. The High Court examined the applicability of Order XXXIX Rule 11 CPC and held that the dismissal of an appeal for non-compliance of an order to bring legal representatives on record is not covered by Order XXXIX Rule 11(1), which applies only to temporary injunctions and interlocutory orders. Such dismissal is governed by Order XLI Rule 17 CPC. The court further held that even if the application under Order XXXIX Rule 11(2) was not maintainable, the appeal could be restored if sufficient cause was shown under Order XLI Rule 17. However, the appellants failed to show sufficient cause for not bringing the legal representatives on record within the time. The explanation that the appellants were not aware of the death of the respondent was not accepted because the application for substitution was filed by the respondents themselves, and the order was passed in the presence of the appellants' counsel. The court found no error in the impugned order and dismissed the appeal.
Headnote
A) Civil Procedure - Dismissal of Appeal for Default - Order XXXIX Rule 11 CPC - Applicability - The dismissal of an appeal for non-compliance of an order to bring legal representatives on record is not a dismissal under Order XXXIX Rule 11(1) CPC, which applies only to temporary injunctions and interlocutory orders; such dismissal is governed by Order XLI Rule 17 CPC. The court held that the application under Order XXXIX Rule 11(2) was not maintainable, but the appeal could be restored if sufficient cause is shown under Order XLI Rule 17. (Paras 4-6) B) Civil Procedure - Sufficient Cause - Setting Aside Dismissal - Order XLI Rule 17 CPC - The appellants failed to show sufficient cause for not bringing legal representatives on record within the stipulated time; the explanation that the appellants were not aware of the death of the respondent was not accepted as the application for substitution was filed by the respondents themselves. The court held that the dismissal of the appeal was justified. (Paras 7-9)
Issue of Consideration
Whether the dismissal of an appeal for non-compliance of an order to bring legal representatives on record can be set aside under Order XXXIX Rule 11(2) CPC, and whether the appellants showed sufficient cause for setting aside the dismissal.
Final Decision
The High Court dismissed the appeal, holding that the impugned order rejecting the application under Order XXXIX Rule 11(2) was correct. The court found that the dismissal of the appeal was not under Order XXXIX Rule 11(1) but under Order XLI Rule 17, and the appellants failed to show sufficient cause for not bringing the legal representatives on record.
Law Points
- Order XXXIX Rule 11 CPC applies only to temporary injunctions and interlocutory orders
- not to dismissal of appeal for default
- Order XLI Rule 17 CPC governs dismissal for default
- Sufficient cause for setting aside dismissal must be shown under Order XLI Rule 17 CPC
