* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2242 OF 2007 (FOR RESTORATION) IN FIRST APPEAL NO. 1440 OF 2005 Ashrafiya and company (M/s.Raymond Retail Shop) ......Applicant (Orig.Appellant) V/s. Employees State Insurance Corporation .....Respondent (Orig.Respondent) ========= Mr.A.V.Anturkar, Sr.Counsel i/by.Mr.Sugandh B.Deshmukh, adv. for applicant. Mr.M.V.Jaykar i/by.M.V.Jaykar & co.,adv for respondent. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 8TH DECEMBER, 2008. P.C. : 1. This Civil Application is taken out for recalling the order dated 28th November, 2006 which reads as follows : “. Mr.Mhatgude, learned counsel appears for the * 2 * appellant. Mr.Jaykar, learned counsel appears for the respondent. . When the matter was called out, Mr.Mhatugade, learned advocate for the appellant, prays for an adjournment on the ground that his senior, who is to argue this appeal, is busy in some other court. When I asked him to go on with the matter he expressed his inability to argue this appeal. In the circumstances, I am constrained to dismiss this appeal for non- prosecution. Order accordingly.” 2. The application is opposed by the respondents, submitting that the same is misconceived since such an application is not provided for in the Civil Procedure Code. Mr.Jaykar, the learned counsel for the respondent submits that the only provision for restoration of a first appeal in the Civil Procedure Code is at Order 41 rule 19. This provision is applicable only in the circumstance, where appeal is dismissed for default under either rule 11(2) or rule 17 of Order 41 CPC and hence the present application which is for setting aside order of “Dismissal for want of prosecution” is not maintainable. 3. Mr.Anturkar, the learned counsel for the applicant then submits that even the order which is sought to be recalled by this Civil Application could not have been passed for want of any provision therefor. He draws attention to the * 3 * term “dismissed for want of prosecution” in the order and submits that the only circumstance in which the appeal can be dismissed for want of prosecution is as provided under rule 18-A (Bombay Amendment) of Order 41. Such a circumstance not being available in the instant case, the appeal could not have been “dismissed for want of prosecution”. According to him, this is a fit case for the court to invoke it's inherent powers under Section 151 Civil Procedure Code to entertain and allow the application. 4. Section 96 of Civil Procedure code provides for an appeal from the original decree. The entire procedure for the appeal from the stage of it's filing till it's final disposal is contained in Order 41 of the schedule to the Code. The provisions for disposal of the appeal at different stages of the proceedings are as follows. The first provision for disposal is at the initial stage of admission of the appeal, before the notice is sent to the lower court. The relevant provision at rule 11(1) and (2) reads as follows : “11. Power to dismiss appeal without sending notice to lower Court.- [(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal.] * 4 * (2)If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.” . The next provision are at the stage when an appeal is admitted and pending for hearing. These provisions at rule 17 and rule 18A (Bombay Amendment) are as follows : “17. Dismissal of appeal for appellant's default.- (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. [Explanation.-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.] (2)Hearing appeal ex-parte.-Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.” “18-A. Dismissal for want of prosecution.- Where after the admission of an appeal the rules or the special directions of the court require the appellant to take any steps in the prosecution of the appeal before a fixed date, and where after due notice intimating the steps to be taken the appellant fails to take such steps within the time prescribed by the rules or allowed by the court, the Court may direct the appeal to be dismissed for want of prosecution or may pass such other order as it thinks fit.” * 5 * . The last stage is disposal of the appeal at final hearing. The court can finally dispose of appeal by judgment under rule 30. Plain reading of the above provisions makes it obvious that rules 17, 18A and 30 are not relevant for the present purposes as they become applicable after the appeal is admitted and it is pending for final hearing. The appeal in the instant case was on the board for it's admission. Therefore, the only provision that could be considered was rule 11. However, this rule does not provide for “dismissal for want of prosecution”. It provides for dismissal on merit after hearing the appellant or dismissal for default in the absence of the appellant. In these circumstances, there is no choice but to hold that Civil Procedure Code does not provide for “dismissal for want of prosecution” of the appeal at the stage of admission of the appeal. It must be noted here that sometimes withdrawal of the proceedings is recorded as “dismissed for want of prosecution”. In the instant case, there was no withdrawal of the appeal. The court of course has inherent powers under Section 151 Civil Procedure Code to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 5. It has been rightly submitted by Mr.Jaykar that the only provision in Order 41 for re-admission of dismissed appeal is * 6 * at rule 19 and the present application does not fall within it's ambit. Rule 19 reads as follows : “ 19. Re-admission of appeal dismissed for default.- Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 [***], the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.” 6. The plain reading of the above provision completely substantiates the submission of Mr.Jaykar. Rule 19 is applicable only to those appeals that are dismissed for default i.e. non-appearance of the appellant either at the stage of admission or at the stage of pending for final hearing. 7. Mr.Anturkar, then submits, that the court should invoke its inherent powers under Section 151 Civil Procedure Code for recalling the order. The court can exercise inherent powers for meeting the ends of justice or to prevent abuse of the process of court. In the instant case, the applicant is thrown out of court without an opportunity of hearing. Unfortunately, his advocate was busy elsewhere and the junior counsel who appeared in the matter for taking an adjournment * 7 * was too raw to conduct the matter. Consequently, the appellant had to suffer dismissal of the appeal. In my opinion, this is a fit case for invoking the powers under Section 151 Civil Procedure code to meet the ends of justice by recalling the order and restoring the appeal. 8. Mr.Jaykar points out that there is delay in filing the present application, which delay is not properly explained in the Civil Application. Perusal of the Civil Application shows that learned counsel for the applicant, has taken the responsibility for the delay on himself. The delay has been not on the part of the applicant, but, has been on the part of the lawyer in filing the application despite instructions from the applicant. In these circumstances, the Civil Application is allowed and the Appeal is restored to file. There shall be no order as to costs. Appeal to be placed on board for admission in the week commencing 15th December, 2008. [SMT.R.P.SONDURBALDOTA, J.]