Babulal @ Babbu vs Mataru & Ors.
2023 Latest Caselaw 6389 MP

                            1              S.A. No.388/2000



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 20th OF APRIL, 2023
              SECOND APPEAL No. 388 of 2000

BETWEEN:-

1.    BABULAL ALIAS BABBU S/O LATE SHRI
      SHIVDAS CHAMAR AGED ABOUT 40
      YEARS R/O VILLAGE JATWA TAHSIL
      PATAN, DISTRICT JABALPUR (MADHYA
      PRADESH)

2.    SAKAI S/O LATE SHRI SHIVDAS AGED
      ABOUT 38 YEARS R/O VILLAGE JATWA
      TAHSIL PATAN DISTRICT JABALPUR
      (MADHYA PRADESH)

                                           .....APPELLANTS
(NONE FOR THE APPELLANTS)

AND

1.    MATARU S/O LATE SHRI LUKHARU AGED
      ABOUT    48   YEARS    OCCUPATION
      CULTIVATION R/O VILLAGE JATWA,
      TAHSIL PATAN, DISTRICT JABALPUR
      (MADHYA PRADESH)

2.    REWA S/O LATE SHRI LUKHARU AGED
      ABOUT    30  YEARS    OCCUPATION
      CULTIVATION R/O VILLAGE JATWA,
      TAHSIL PATAN, DISTRICT JABALPUR
      (MADHYA PRADESH)

3.    LAXMAN S/O LATE SHRI LUKHARU, AGED
      ABOUT    27   YEARS    OCCUPATION
      CULTIVATION R/O VILLAGE JATWA
      TAHSIL PATAN, DISTRICT JABALPUR
      (MADHYA PRADESH)

4.    HIRA S/O LATE SHRI CHETRAM AGED
                                    2                 S.A. No.388/2000


     ABOUT 12 YEARS MINOR THROUGH
     GUARDIAN    GRAND   FATHER   SHRI
     MATARU R/O VILLAGE JATWA TAHSIL
     PATAN, DISTRICT JABALPUR (MADHYA
     PRADESH)

                                                    .....RESPONDENTS
(NONE FOR THE RESPONDENTS )
.........................................................................................................

      This appeal coming on for hearing this day, the court passed the

following:

                               ORDER

On 10.04.2023, none had appeared for the appellants.

2. Today also, none appears for the appellant.

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 Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.04.21 12:49:40 +05'30'