Litigant’s Right Of Appeal

Source: The Hitavada      Date: 17 Sep 2018 15:21:08


 

 

 

 

 

 

 

 

 

 

After hearing the parties and on perusal of the record of the case and finding force in the submissions urged by the appellant’s counsel, the apex court expressed the opinion that “the Division Bench should have decided the appeals on merits in accordance with law”


In the judgment of the case – Mysore Urban Development Authority (MUDA) v K M Chikkathayamma & Others, delivered on September 7, 2018, Justice Abhay Manohar Sapre and Justice S. Abdul Nazeer, at the Supreme Court, have held that the division Bench of the Karnataka High Court was not right in dismissing the appeals filed by the MUDA“as not pressed”.


After hearing the parties and on perusal of the record of the case and finding force in the submissions urged by the appellant’s counsel, the apex court expressed the opinion that “the Division Bench should have decided the appeals on merits in accordance with law”.


Special leave petitions in this case were directed against the final judgment and order passed by the Karnataka HC on November 9, 2016, whereby the HC had dismissed the appeals filed by the appellant (before the Supreme Court) and, in consequence, upheld the judgment delivered by the Single Judge on March 10, 2016, which had allowed the writ petitions filed by the respondents (before the Apex-Court).


In the year 2001, the respondents felt aggrieved by the acquisition proceedings and filed writ petitions questioning the legality and correctness of the notification of December 19, 1991 and consequential notifications issued thereafter in the Karnataka HC at Bangalore. The MUDA and the State contested the writ petitions on several factual and legal grounds.


On December 15, 2003, the Single Judge allowed the writ petitions and quashed the entire acquisition proceedings on the ground that there was a delay on the part of the MUDA in taking possession of the acquired land and hence the acquisition proceedings have been rendered illegal.


Aggrieved MUDA filed intra Court appeals before the division bench, out of which these special leave petitions arise. Responding to an application filed by the respondents in the appeals with the prayer for dismissal of the appeals on the ground of being infructuous as, according to them, MUDA had decided on July 2, 2016 to drop the lands in question from the acquisition proceedings. The division bench passed the impugned order on November 9, 2016, dismissing the appeals. Thus, the subject matter reached the Supreme Court.


The Apex-Court has stated that after going through the resolution of July 2, 2016, and Govt. letter of June 26, 2018 and November 14, 2017 letter of the Commissioner and further keeping in view the relevant provisions of the Karnataka Urban Development Authorities Act, 1987, it is of the view that the appeals filed by the MUDA could not have been dismissed “as not pressed”. In other words, the HC should have dismissed the respondents’ application as being misconceived and decided the appeals on merits in accordance with law.


In the Court’s opinion, neither there was any express prayer made by the MUDA and nor it could be inferred from the document relied on by the division bench at the instance of the respondents (writ petitioners) for forming an opinion “not to press the appeal”.


In other words, the opinion formed by the HC for dismissing the appeals “as not pressed” had no basis. Such dismissal in the court’s view certainly deprived the MUDA of their right to prosecute the appeals on merits.


According to the court, a right of appeal is a valuable right of a litigant. He is entitled to prosecute this right as it enables him to seek adjudication of the issues on merits, which are subject matter of the appeal, by the appellate Court. He can, however, forgo such right but it has to be done with express authority and free will. The respondents, however, cannot compel the appellant to give up the right of prosecuting the appeal unless the respondents are able to show any express provision in law in that behalf or valid reasons acceptable in law which deprive the appellant from prosecuting his grievance in appeal.


If the appellant is a juristic entity created under the Act, they have to ensure strict compliance of the relevant provisions of the Act under which they are created coupled with ensuring compliance of relevant provisions of the Code of Civil Procedure for forgoing their right to prosecute the appeal on merits.


If, for some reasons, there are two rival groups in a juristic entity, one pays for withdrawal and the other insisting for hearing the appeal then it is the duty of the Court to resolve this issue first in the light of the relevant provisions of law and then proceed to decide the appeal accordingly. Similarly, when such prayer is made at the instance of the respondent and is opposed by the appellant, the same has to be dealt with strictly in accordance with law by the Appellate Court.


The submissions urged by the respondents (in the writ petition), have no merit.


In the Court’s opinion, any act done by the parties in relation to the subject matter of the appeals after the impugned order, cannot be pressed into service to support the impugned order. In other words, the legality and correctness of the impugned order has to be examined in the light of reasoning contained in the impugned order and not on the basis of the acts done by the parties subsequent to passing of the impugned order. It is for this reason, the acts done by the party subsequent to passing of the impugned order are of no relevance for deciding these appeals.


In view of the discussion, the Court has stated that it is unable to concur with the reasoning and the conclusion reached by the division bench in the impugned order.


The appellants thus succeed and their appeals are accordingly allowed. Impugned orders in both the cases have been set aside. The writ appeals out of which these appeals arise have been accordingly restored to their original numbers. The Apex-Court “requested” the HC to decide the appeals on merits in accordance with law. The Court made it clear that it had not applied its mind to the merits of controversy having formed an opinion to remand the case to the HC .The HC would, therefore, decide the appeals without being influenced by any of its observations. The Court also made it clear that any step/s, if claimed to have been taken by the respondents (writ petitioners) subsequent to the impugned order, the same would not, in any way, influence the HC, while deciding the appeals on merits.


The Supreme Court has given liberty to the parties to claim refund refund of their money, if they claimed to have paid /deposited with the appellant in relation to the subject matter of the appeals.