Madhya Pradesh High Court
Kaushal Prasad & Ors. vs Ramadhar Shukla & Ors. on 12 April, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 12th OF APRIL, 2023
FIRST APPEAL No.488 of 1999
BETWEEN:-
1. KAUSHAL PRASAD, AGED 45
YEARS, S/O LATE SHRI DEVDATT
TRIPATHI, OCCUPATION
CULTIVATION AND SERVICE, R/O
VILLAGE MANKAHRI, P.S. GADH,
TAHSIL MAUGANJ, DISTRICT
REWA (MADHYA PRADESH)
2. VISHNUDATT, AGED 62 YEARS, S/O
SHRI HARIHAR PRASAD
TRIPATHI, OCCUPATION
CULTIVATION, R/O VILLAGE
MANKAHRI, P.S. GADH, TAHSIL
MAUGANJ, DISTRICT REWA
(MADHYA PRADESH)
3. SURSARI PRASAD, AGED ABOUT
28 YEARS, S/O SHRI INDRA DATT
TRIPATHI, OCCUPATION
CULTIVATIONA ND SERVICE, R/O
BHERAGHAT, TAH & DISTRICT
JABALPUR (MADHYA PRADESH)
4. RAMNARESH, AGED 52 YEARS, S/O
SHRI HARIHAR PRASAD
TRIPATHI, OCCUPATION
CULTIVATION, R/O VILLAGE
MANKAHRI, P.S. GADH, TAHSIL
MAUGANJ, DISTRICT REWA
(MADHYA PRADESH)
.....APPELLANTS
(BY NONE)
AND
1. RAMADHAR SHUKLA, AGED 28
YEARS, S/O SHRI SARYU PRASAD
SHUKLA, OCCUPATION
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 13-Apr-23
10:11:49 AM
2
CULTIVATION, R/O VILLAGE
MANKAHRI, TAHSIL MAUGANJ,
DISTRICT REWA (MADHYA
PRADESH)
2. MAHENDRA PRASAD SHUKLA,
AGED 22 YEARS, S/O SHRI
PARASNATH SHUKLA,
OCCUPATION CULTIVATION, R/O
VILLAGE MANKAHRI, TAHSIL
MAUGANJ, DISTRICT REWA
(MADHYA PRADESH)
3. NARENDRA PRASAD, AGED 20
YEARS, S/O GABINATH SHUKLA,
OCCUPATION CULTIVATION, R/O
VILLAGE MANKAHRI, TAHSIL
MAUGANJ, DISTRICT REWA
(MADHYA PRADESH)
4. ARVIND PRASAD, AGED 19 YEARS,
S/O KAMTA PRASAD,
OCCUPATION CULTIVATION AND
STUDENT, R/O VILLAGE
MANKAHRI, TAHSIL MAUGANJ,
DISTRICT REWA (MADHYA
PRADESH)
5. CHANDRAVATI, AGED 36 YEARS,
W/O SHIVRAM DUBE, R/O
VILLAGE PARASI, TAHSIL
SIRMOUR, DISTRICT REWA
(MADHYA PRADESH)
6. PARVATI, AGED 39 YEARS, D/O
SHRI JWALA PRASAD, C/O RAMJI
DUBE, R/O GAGAHARAKALA,
POST REHI, P.S. LALGANJ,
DISTRICT MIRJAPUR (UTTAR
PRADESH)
7. RAMRATI, AGED 42 YEARS, W/O
RAMANCHAL DUBEY D/O SHRI
JWALA, R/O VILLAGE
GAGAHARAKALA, POST REHI, P.S.
LALGANJ, DISTRICT MIRZAPUR
(UTTAR PRADESH)
8. BHAGWANIYA, AGED 59 YEARS,
W/O SHRI BAIJNATH PRASAD
MISHRA, R/O VILLAGE BANS,
TAHSIL SIRMOUR, P.S. GADH,
DISTRICT REWA (MADHYA
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 13-Apr-23
10:11:49 AM
3
PRADESH)
9. STATE OF MADYA PRADESH
THROUGH COLLECTOR REWA
.....RESPONDENTS
(RESPONDENTS NO.1 TO 5 BY SHRI J.L. MISHRA - ADVOCATE)
This appeal coming on for hearing this day, the court passed the
following:
ORDER
On 13/12/2005, none had appeared for the appellants.
2. On 30/01/2023 also, none had appeared for the appellants in the
first round and accordingly, the case was passed over.
3. On 13/03/2023, none appeared for the appellants.
4. Today also none appears for the appellants. Thus, it is clear that
for last three dates, nobody is appearing on behalf of the appellants.
5. Accordingly, it appears that the appellants must have lost their
interest in prosecuting this appeal.
6. Under these circumstances, this Court cannot consider and
decide the appeal on merits in the light of the judgment passed by the
Supreme Court in the case of Sri Prabodh Ch. Das & Another Vs.
Mahamaya Das & Others in Civil Appeal No.9407/2019 decided on
13th of December, 2019, in which it has been held as under:-
"10. This position has been clarified by this Court
in Abdur Rahman and others v. Athifa Begum and
others (1996 (6) SCC 62) wherein it was held that
High Court cannot go into the merits of the case
when there was nonappearance of the appellant. In
Ghanshyam Dass Gupta v. Makhan Lal (2012 (8)
SCC 745) this Court has reiterated the legal position
as under:
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 13-Apr-23
10:11:49 AM
"Prior to 1976, conflicting views were
expressed by the different High Courts in the
country as to the purport and meaning of sub-
rule (1) of Rule 17 of Order 41 CPC. Some
High Courts had taken the view that it was
open to the appellate court to consider the
appeal on merits, even though there was no
appearance on behalf of the appellant at the
time of hearing. Some High Courts had taken
the view that the High Court cannot decide the
matter on merits, but could only dismiss the
appeal for the appellant's default. Conflicting
views raised by the various High Courts gave
rise to more litigation. The legislature,
therefore, in its wisdom, felt that it should
clarify the position beyond doubt.
Consequently, the Explanation to subrule (1)
of Rule 17 of Order 41 CPC was added by Act
104 of 1976, making it explicit that nothing in
subrule (1) of Rule 17 of Order 41 CPC should
be construed as empowering the appellate
court to dismiss the appeal on merits where the
appellant remained absent or left
unrepresented on the day fixed for hearing the
appeal. The reason for introduction of such an
Explanation is due to the fact that it gives an
opportunity to the appellant to convince the
appellate court that there was sufficient cause
for nonappearance. Such an opportunity is lost,
if the courts decide the appeal on merits in
absence of the counsel for the appellant."
11. Coming to the facts of the present case, the Court
has decided the appeal on merits after noticing "....
On this date a request for adjournment was made on
behalf of Mr. Lodh when the matter was adjourned to
18.12.2014 and on 18.12.2014 Mr. Choudhury made
a request for adjournment. Today Mr. Choudhury is
not even present to argue the matter and no request
has been made on his behalf. I, therefore, proceed to
decide the appeal on merits itself." This order has
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 13-Apr-23
10:11:49 AM
been made clearly in contravention of Rule 17(1) of
Order XLI of the CPC.
12. Therefore, we set aside the impugned judgment
and decree of the High Court and remit the matter to
the High Court for fresh disposal in accordance with
law. Appeal is disposed of accordingly. However,
there will be no order as to costs."
7. Accordingly, the appeal is dismissed for want of prosecution.
8. Interim order dated 10/09/1999 is hereby vacated.
(G.S. AHLUWALIA)
JUDGE
shubhankar
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 13-Apr-23
10:11:49 AM
