Fattechand vs Phulchand & Ors.
2023 Latest Caselaw 5981 MP

                          1


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 12th OF APRIL, 2023
              SECOND APPEAL No. 748 of 1999
BETWEEN:-

FATTECHAND, AGED ABOUT 47 YEARS, S/O
BHARJURAM JI NARANG, R/O WARD NO.8,
BALAGHAT, TEHSIL BALAGHAT, DISTRICT
BALAGHAT (MADHYA PRADESH)



                                              .....APPELLANT
(NONE)

AND

1.    PHULCHAND, AGED 35 YEARS, CASTE
      PAWAR, OCCUPATION CULTIVATOR, R/O
      VILLAGE GARRA (RAMPAYLI) R.I. CIRCULE
      WARASEONI,     TEHSIL    WARASEONI,
      DISTRICT BALAGHAT (MADHYA PRADESH)



2.    DHANESHKUMAR, AGED 33 YEARS, CASTE
      PAWAR, OCCUPATION CULTIVATOR, R/O
      VILLAGE GARRA (RAMPAYLI) R.I. CIRCULE
      WARASEONI,     TEHSIL    WARASEONI,
      DISTRICT BALAGHAT (MADHYA PRADESH)



3.    REKLAL, AGED 25 YEARS, CASTE PAWAR,
      OCCUPATION CULTIVATOR, R/O VILLAGE
      GARRA     (RAMPAYLI)  R.I.   CIRCULE
      WARASEONI,     TEHSIL      WARASEONI,
      DISTRICT BALAGHAT (MADHYA PRADESH)



4.    BIRMOHAN, AGED 21 YEARS, CASTE PAWAR,
      OCCUPATION CULTIVATOR, R/O VILLAGE
                                   2


     GARRA     (RAMPAYLI)  R.I.   CIRCULE
     WARASEONI,     TEHSIL      WARASEONI,
     DISTRICT BALAGHAT (MADHYA PRADESH)



5.   DULICHAND, AGED 18 YEARS, CASTE
     PAWAR, OCCUPATION CULTIVATOR, R/O
     VILLAGE GARRA (RAMPAYLI) R.I. CIRCULE
     WARASEONI,     TEHSIL    WARASEONI,
     DISTRICT BALAGHAT (MADHYA PRADESH)



6.   MST. MANKU WIDOW OF PITAMLAL AGED
     35 YEARS, CASTE PAWAR, OCCUPATION
     CULTIVATOR,   R/O   VILLAGE   GARRA
     (RAMPAYLI) R.I. CIRCULE WARASEONI,
     TEHSIL WARASEONI, DISTRICT BALAGHAT
     (MADHYA PRADESH)



                                                    .....RESPONDENTS
(NONE)
      This appeal coming on for final hearing this day, the court passed

the following:

                                      ORDER

By order dated 02.01.2023 SPC was issued to the appellant as well as the respondents. SPC issued to the appellant has been returned on the ground that addressee does not reside at the given address. Thereafter, none appeared on 30.01.2023 in the first round and accordingly, the case was passed over. On 13.03.2023 none appeared for the appellant.

2. Today also none appears for the appellant. Thus, it is clear that whereabouts of the appellant are also not known. Even the counsel for the appellant is not appearing.

3. 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 and another Vs. Mahamaya Das and others, decided on 13.10.2019 in Civil Appeal 9407/2019 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 wherein it was held that High Court cannot go into the merits of the case when there was non-appearance of the appellant. In Ghanshyam Dass Gupta v. Makhan Lal this Court has reiterated the legal position as under:

"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 sub-rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub-rule (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 non-appearance. 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 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."

4. Accordingly, the appeal is dismissed for want of prosecution.

(G.S. AHLUWALIA) JUDGE vc

Digitally signed by VARSHA CHOURASIYA Date: 2023.04.12 18:44:44 +05'30'