Madras High Court Allows Revision Petition Under Article 227 Against Dismissal of Application Under Order XLI Rule 19 CPC — Maintainability Upheld Despite Availability of Appeal Under Order XLIII Rule 1(t) CPC. First Appellate Court Erred in Deciding Appeal on Merits Instead of Dismissing for Non-Prosecution Under Order XLI Rule 17 CPC.

Civil revision petition under Article 227 of the Constitution of India challenging the order of the First Appellate Court dismissing an application under Order XLI Rule 19 CPC to re-admit an appeal dismissed for non-prosecution.

The petitioner sought to set aside the order dated 24.08.2023 in I.A.No.2 of 2022 in A.S.No.12 of 2016 passed by the Additional Sub-Judge, Chengalpattu, and to restore the appeal to its file.

The petitioner's appeal was dismissed on merits by the First Appellate Court despite his absence, and his subsequent application under Order XLI Rule 19 CPC to re-admit the appeal was also dismissed.

The suit O.S.No.166 of 2002 was dismissed on 31.10.2014 by the District Munsif Court, Chengalpet. The appeal A.S.No.12 of 2016 was dismissed on merits by the Additional Sub-Judge, Chengalpattu. The application I.A.No.2 of 2022 under Order XLI Rule 19 CPC was dismissed on 24.08.2023.

Whether the civil revision petition under Article 227 is maintainable against an order refusing to allow an application under Order XLI Rule 19 CPC, when a statutory appeal is available under Order XLIII Rule 1(t) CPC. Whether the First Appellate Court erred in deciding the appeal on merits under Order XLI Rule 17 CPC instead of dismissing it for non-prosecution when the appellant was absent.

Petitioner argued that under Order XLI Rule 17 CPC, the appellate court could only dismiss the appeal for non-prosecution and not decide it on merits, relying on Prabodh ch.Das v. Mahamaya Das and Prema v. Murugappan. Respondents argued that the revision petition is not maintainable as an appeal lies under Order XLIII Rule 1(t) CPC, and that the application under Order XLI Rule 19 CPC should have been accompanied by a condonation of delay application.

The High Court held that a revision petition under Article 227 is maintainable despite the availability of a statutory appeal, as the supervisory jurisdiction under Article 227 is not barred by an alternative remedy. On merits, the court held that under Order XLI Rule 17 CPC, if the appellant is absent, the appellate court can only dismiss the appeal for non-prosecution and cannot decide it on merits. The First Appellate Court acted without jurisdiction by deciding the appeal on merits, and therefore the order dismissing the application under Order XLI Rule 19 CPC was set aside.

The appellant, aggrieved by dismissal of his application under Order XLI Rule 19 of the Code of Civil Procedure, has come up by way of this revision petition. Mr.S.D.Venkateswaran, learned counsel for the revision petitioner would submit that the revision petitioner, as plaintiff, had filed a suit in O.S.No.166 of 2002 and the said suit came to be dismissed on 31.10.2014 by the District Munsif Court, Chengalpet. He would further state that challenging the judgment and decree, A.S.No.12 of 2016 was filed. However, pending the said appeal, in view of the non-appearance of the petitioner/his counsel, the First Appellate Court had proceeded to decide the appeal on merits. Mr.S.D.Venkateswaran, learned counsel for the petitioner, inviting my attention to Order XLI Rule 17 of C.P.C, would contend that if the appellant was absent on the date fixed for hearing the appeal, then the only course open to the Appellate Court was to dismiss the appeal for non-prosecution. In this regard, the learned counsel for the revision petitioner would rely on the decision of the Hon'ble Supreme Court in Prabodh ch.Das and another versus Mahamaya Das and others reported in 2020 (1) CTC 237. He would also refer to the decision of this Court in Prema and another versus Murugappan, reported in 2017 (5) LW 158, where this Court referring to Order XLI Rule 17 of CPC, held that the first appeal could have been dismissed only for non-prosecution and could not have been decided on merits, set aside the order passed by the District Court and restored the appeal to file. Per contra, Mr.V.K.Sathiamurthy, learned counsel appearing for the respondents would first and foremost attack the very maintainability of the revision petition. Referring to Order XLIII Rule 1(t) of CPC, Mr.V.K.Sathiamurthy would contend that when an order refusing to allow an application filed under Order XLI Rule 19 of CPC is specifically made appealable under the Code and Article 123 also provides for a 30 day period of limitation for challenging the said order, the petitioners have mischievously bypassed the statutory remedy and straight away approached this Court under Article 227 of the Constitution of India. It is the further submission of the learned counsel for the respondents that the application under Order XLI Rule 19 of CPC ought to have been filed, along with an application for condonation of delay, which also has not been done in the instant case.

The petitioner filed O.S.No.166 of 2002 before the District Munsif Court, Chengalpet, which was dismissed on 31.10.2014. He filed A.S.No.12 of 2016 before the Additional Sub-Judge, Chengalpattu. The appeal was dismissed on merits on 24.08.2023 due to non-appearance. The petitioner filed I.A.No.2 of 2022 under Order XLI Rule 19 CPC to re-admit the appeal, which was also dismissed on 24.08.2023. The petitioner then filed CRP.No.5048 of 2025 under Article 227 before the Madras High Court, which was allowed on 30.01.2026.

• Code of Civil Procedure, 1908: Order XLI Rule 17, Order XLI Rule 19, Order XLIII Rule 1(t)
• Constitution of India: Article 227