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Civil ProcedureSupreme Court of India

Harbans Pershad Jaiswal (through legal representatives) v. Urmila Devi Jaiswal (through legal representatives)

Civil Appeal · Neutral citation not assigned (Civil Appeal No. 4656 of 2014)Decided 21 Apr 2014
Civil Appeal No. 4656 of 2014
Justice S.S. Nijjar · Justice A.K. Sikri

Background

A daughter sought partition of family properties, and both sides appealed against different parts of the preliminary decree. When the appeals were reheard, the brother's side was unrepresented. The High Court allowed the daughter's appeal and rejected the brother's appeal on merits, then refused applications to reopen the proceedings.

Decision Breakdown

The Court explained that an absent respondent's appeal can be heard against them, but an absent appellant's own appeal may only be dismissed for default rather than decided on merits under Order XLI Rule 17. The High Court therefore used the wrong approach to the brother's appeal, while it could properly hear the daughter's appeal in his absence. Nevertheless, reopening either proceeding required sufficient cause for non-appearance, and the High Court's finding that none was shown was not challenged effectively. Treating the brother's dismissal as one for default therefore gave no basis for restoration. All four Supreme Court appeals were dismissed.

Lesson Learnt

Missing an appeal hearing has different consequences depending on whether you are the appellant or respondent. Even where a court wrongly dismisses an absent appellant's case on merits, restoration still requires a satisfactory explanation for the absence.

Harbans Pershad Jaiswal (through legal representatives) v. Urmila Devi Jaiswal (through legal representatives) – Legal Case Shots | LegalAware