Mustaque Ahmad & Anr. vs Santdas
2023 Latest Caselaw 5984 MP

Citation : 2023 Latest Caselaw 5984 MP
Judgement Date : 12 April, 2023

Madhya Pradesh High Court

Mustaque Ahmad & Anr. vs Santdas 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. 501 of 1999
BETWEEN:-

1. MUSTAQUE AHMAD AGED ABOUT 30 YEARS, S/O
ABDUL HAMID R/O BIRSINGHPUR PALI, TEHSIL
SOHAGPUR,   DISTRICT  SHAHDOL    (MADHYA
PRADESH)

2. ABDUL HAMID THROUGH LEGAL HEIRS:

A. SMT. KUBRA BEGUM WD/O LATE ABDUL HAMID,
AGED ABOUT 65 YEARS, R/O WARD NO.2, POST
BIRSINGHPUR PALI, DISTT. UMARIYA (MP)

B. ISTAGUE AHMED S/O LATE ABDUL HAMID AGED
ABOUT 41 YEARS R/O WARD NO.2, POST
BIRSINGHPUR PALI, DISTT. UMARIYA (MP)

C. SMT. WAHIDA BEGUM W/O ABDUL KALEEM AGED
ABOUT 39 YEARS, R/O TALAPARA, BILASPUR
(CHHATTISGARH)

D. SMT. MEHMOODA BEGUM W/O A.R. JAVED, AGED
ABOUT 36 YEARS, R/O QTR. NO.128, GORABAZAR,
JABALPUR (MP)

E. AZIZ AHMED S/O LATE ABDUL HAMID, AGED
ABOUT 33 YEARS, R/O WARD NO.2, POST
BIRSINGHPUR PALI, DISTT. UMARIYA (MP)

F. KU. FARIDA BEGUM D/O LATE ABDUL HAMID
AGED ABOUT 30 YEARS, R/O WARD NO.2, POST
BIRSINGHPUR PALI, DISTT. UMARIYA (MP)

G. RASHID AHMED S/O LATE ABDUL HAMID AGED
ABOUT 27 YEARS, R/O WARD NO.2, POST
BIRSINGHPUR PALI, DISTT. UMARIYA (MP)

H. KU. ZAHEEDA PARVEEN D/O LATE ABDUL HAMID
AGED ABOUT 23 YEARS, R/O WARD NO.2, POST
                                 2


BIRSINGHPUR PALI, DISTT. UMARIYA (MP)

I. JAVED AHMED S/O LATE ABDUL HAMID AGED
ABOUT 19 YEARS, R/O WARD NO.2, POST
BIRSINGHPUR PALI, DISTT. UMARIYA (MP)

                                                          .....APPELLANT
(NONE)

AND

SANTDAS AGED ABOUT 52 YEARS, S/O DEEPCHAND,
R/O BIRSINGHPUR PALI, TEHSIL SOHAGPUR,
DISTRICT SHAHDOL (MADHYA PRADESH)



                                                       .....RESPONDENTS
(BY SHRI R.S. TIWARI - ADVOCATE)
      This appeal coming on for final hearing this day, the court passed

the following:

                                    ORDER

On 30.01.2023 none had appeared for the appellants and therefore, the case was passed over. On 13.03.2023 none had appeared for the appellants.

2. Today also none appears for the appellants. Thus, it appears that the appellants must have lost their interest in prosecuting this appeal.

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."