How to file appeal in a non-speaking order

The Kerala High Court on January 21, 2011 in Sathyadasan Vs. Sudeepkumar, 2011 (1) KLT 1003 : AIR 2011 Ker. 102 : 2011 (2) RCR (Civil) 685 held that “if the order is not a speaking order still the Appellate court can set aside that order invoking the appellate jurisdiction”.

Justice K.T. Sankaran observed that “the chances of allowing an appeal setting aside a non-speaking order would be high when compared to the chances of interference in the case of a speaking and reasoned order.”

“It is not a requirement for the maintainability of the appeal that the order should be a speaking order.” the Court said.

# Speaking Order

While holding the defect noted by the Registry is right the High Court held that whatever may be the nature of the order, if the order is one dismissing an application under Rule 19 of Order 41 on the merits, it is appealable under Rule 1(t) of Order 43.

See Also : Order 43 Rule 1 CPC; Appeals from Orders

When there is no requirement under Order 43 Rule 1(t) that the order which is appealable thereunder should be a speaking or reasoned order, it is not proper to import into the provision something which is not there, in order to hold that such orders are open to challenge under Article 227 of the Constitution of India.

The Counsel for the Petitioner K. Jayakumar contented that even if an appeal is filed, the Petitioner would not be able to successfully challenge the order in appeal since the application was not disposed of by a speaking order, is equally unsustainable.

# Facts of the Case

Aggrieved by the Order dismissing the application under Rule 19 of Order 41 of the Code of Civil Procedure, the Petitioner filed this unnumbered Original Petition.

# Order 41 Rule 19 CPC 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.

The Registry noticed a defect that the order is appealable under Rule 1(t) of Order 43 of the Code of Civil Procedure.

There is no dispute that the application was filed under Rule 19 of Order 41 and that the ingredients of Rule 19 were attracted. The contention of the Petitioner is that the order impugned is not a speaking order and therefore, an appeal under Rule 1(t) of Order 43 may not be a proper remedy.

The order passed by the court below reads as follows:

Sufficient opportunity was given for hearing the appeal. The Appellant was not ready for hearing, though die appeal was posted for hearing from 18.8.09 onwards in the list. Hence, the IA. is dismissed as devoid of merit.

Rule 1(t) of Order 43 provides for an appeal against an order of refusal under Rule 19 of Order 41 to readmit or under Rule 21 of Order 41 to rehear an appeal.

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