In CIVIL APPEAL No. 1463 OF 2019, The Commissioner, Mysore Urban Development Authority vs S.S. Sarvesh, an appeal filed by the appellant herein was dismissed for in default by the Appellant Court because of non-appearance of the appellant’s advocate. Recall application filed by the appellant before the appeal court as well as the High Court was rejected.
Quoting Justice Vivian Bose in Sangram Singh vs. Election Tribunal, Kotah, the Supreme Court said if the appellant’s advocate did not appear may be for myriad reasons, the Court could have imposed some cost on them for restoration of their appeal to compensate the respondent(plaintiff) instead of depriving them of their valuable right to prosecute the appeal on merits.
Indeed, dismissal of the appeal in default and dismissal of the appeal on merits makes a difference. The former dismissal is behind the back of the litigant and latter dismissal is after hearing the litigant. The latter is always preferred than the former.
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