Kamlesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 6124 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                          BEFORE
        HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
                      ON THE 17 th OF APRIL, 2023
                   WRIT PETITION No. 7898 of 2023

BETWEEN:-
KAMLESH S/O SHRI RAGHUVEER SHARAN SHARMA,
AGED ABOUT 60 YEARS, VILLAGE AND POST THARETH
BLOCK SEONDHA, DATIA (MADHYA PRADESH)

                                                              .....PETITIONER
(BY SHRI ABHISHEK SHARMA - ADVOCATE)

AND
1.    THE STATE OF MADHYA PRADESH THR.
      PRINCIPAL     SECRETARY,    REVENUE
      DEPARTMENT, VALLABH BHAWAN, BHOPAL
      (MADHYA PRADESH)

2.    THE COLLECTOR, DATIA, DISTT. DATIA (MADHYA
      PRADESH)

3.    SUB DIVISIONAL OFFICER, S EON D HA DISTT.
      DATIA (MADHYA PRADESH)

4.    SMT. SUNITA W/O LATE SHRI RAMESHCHANDRA,
      R / O VILLAGE AND POST THARETH BLOCK,
      SEONDHA, DATIA (MADHYA PRADESH)

                                                           .....RESPONDENTS
(BY SHRI SHEERAZ QUARAISHI - GOVT. ADVOCATE )

      This petition coming on for admission this day, th e court passed the
following:
                                   ORDER

The present petition under Article 226 of the Constitution of India has been filed against the order dated 17.03.2021 whereby petitioner's appeal under section 44 of the M.P. Land Revenue Code, 1959 (Hereinafter referred as code

of 1959) has been dismissed on the ground of default of non-appearence of the Counsel for the petitioner It is submitted by Counsel for the petitioner that petitioner's appeal under section 44 of the M.P. Land Revenue Code, 1959 (Hereinafter referred as code of 1959) has been dismissed on the ground of default of non-appearence of the Counsel for the petitioner for argument on the application of condonation of delay. However, from bare perusal of previous order sheets, it is apparent that, on 29-01-2021 and 17-02-2021 matter was listed for calling record, which was not received and then again 25-02-2021 case was listed for argument, however it has not been mentioned on whose instance time was granted, hence

presumption of presiding officer to the effect that, appellant is not interested to prosecute the appeal is contrary to the record. Even otherwise petitioner's appeal was dismissed due to want of prosecution, due to non-appearance of the counsel, however, the same should not have been dismissed on this ground as on account of counsel's fault litigant should not suffer as held by Hon'ble Apex court in catena of Judgments. Hence impugned order dismissing an appeal for want of prosecution deserves to be quashed and petitioner's appeal deserves to be restored, in the interest of justice.

After hearing Counsel for the petitioner and the averments made in the writ petition, this Court is of the considered opinion that the petitioner has failed to explain the cause of non-appearance of the Counsel on the date fixed for arguments and therefore, the impugned order dated 17.03.2021 cannot be said to be perverse rather is wholly justified.

At this juncture, it is submitted by Counsel for the petitioner that he may be granted liberty to approach the revenue authorities for redressal of his grievance.

The petitioner is free to approach the Revenue Authorities, if he wants to and there is no need to grant liberty for that.

Accordingly, the petition is dismissed.

(MILIND RAMESH PHADKE) JUDGE ar

ABDUR RAHMAN 2023.04.18 14:23:33 +05'30'