Madhya Pradesh High Court
Laxmi Narayan Pandey vs Satpal Sharma on 19 April, 2023
Author: Gurpal Singh Ahluwalia
1 F.A.No.674/1999
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 19th OF APRIL, 2023
FIRST APPEAL No. 674 of 1999
BETWEEN:-
LAXMI NARAYAN PANDEY, AGED
ABOUT 70 YEARS, S/O SHRI
MANNULALJI PANDEY R/O AT
PRESENT CHACHAI COLONY,
PIPLANI, BHOPAL (MADHYA
PRADESH)
.....APPELLANT
(NONE FOR THE APPELALLANT)
AND
SATPAL SHARMA, AGED ABOUT 70
YEARS
S/O SHRI CHOOTELAL SHARMA, R/O
17, NEAR ABBAS MASJID, RETGHAR,
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENT)
This appeal coming on for hearing this day, the court passed the
following:
ORDER
On 20.02.23 and 12.04.2023 none had appeared, although the case
was adjourned. Also on 16.03.2023 none had appeared but the case was
adjourned on the ground of personal difficulty of the arguing counsel.
2. Today also none appears for the appellant.
3. Accordingly, it appears that the appellant must have lost his interest
in prosecuting this appeal.
4. 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:
"Prior to 1976, conflicting views were expressed
by the different High Courts in the country as to
the purport and meaning of subrule (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 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 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 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."
5. Accordingly, the appeal is dismissed for want of prosecution.
(G.S. AHLUWALIA)
JUDGE
vinay*
Digitally signed by VINAY KUMAR BURMAN
Date: 2023.04.20 17:51:16 +05'30'
