AI Structured Summary
Not yet generated for this judgment
Judgment
A.C. Behera, J
This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
This CMAPL has been filed by the petitioners (those were the appellants in S.A. No.35 of 2001) under Order 41, Rule 19 of the CPC with a prayer for readmission of the 2nd Appeal vide S.A. No.35 of 2001, which was dismissed for the default of the appellants on 08.12.2023.
In the petition of CMAPL No.834 of 2023, the petitioners have stated that, for the slight latches on the part of their learned counsel i.e. due to his remaining busy in another court, their 2nd appeal vide S.A. No.35 of 2001 was dismissed on the ground of their default. The petition of the petitioners is supported with an affidavit.
The counsel who was holding power on behalf of the respondents in S.A. No.35 of 2001 has filed a memo being present in the court stating that, he has no objection on behalf of the Opposite Parties (those were the respondents in S.A. No.35 of 2001), if the 2nd Appeal No.35 of 2001 will be re-admitted after setting aside its dismissal order passed on dated 08.12.2023.
The law has been settled, as per the dictum of the Apex Court in the ratio of the decision between SUMTIBAI & OTHERS VS. PARAS FINANCE CO. MANKANWAR W/O. PARASMAL CHORDIA (D) & OTHERS (PARA 8) that’
“The Civil Procedure Code is really the rules of natural justice, which are set out in great and elaborate detail. Its purpose is to enable both parties to get a hearing.”
The law has also further been settled in the catena of decisions that, when courses of substantial justice and the law of technicalities are pitted against each other, the courses of substantial justice deserves to be preferred in order to enable both the parties to get the hearing of the lis/case/suit/appeal on merit without dismissing the same on any technical ground, for no other reason, but only in order to avoid the multiplicity of litigations between the parties for all times to come and to decide the controversies between them finally.
When both the parties of the CMAPL are interested for hearing of the 2nd Appeal vide S.A. No.35 of 2001 on merit after setting aside its dismissal order (which was passed for the default of the appellants), then at this juncture, in view of the above principles, there is no justification under law to disallow the CMAPL No.834 of 2023.
Therefore, the CMAPL No.834 of 2023 filed on behalf of the petitioners is allowed.
The dismissal order passed on dated 08.12.2023 in S.A. No.35 of 2001 is set aside.
The 2nd Appeal vide S.A. No.35 of 2001 be re-admitted (restored) to its original state as it was prior to its dismissal on 08.12.2023.
Accordingly, the CMAPL No.834 of 2023 is disposed of finally.
..……………………………….