Krishna Gopal Sharma vs Radhakrishna Sharma
2023 Latest Caselaw 6391 MP

                                 1                    S.A. No.1162/2019



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. 1162 of 2019
BETWEEN:-

KRISHNA GOPAL SHARMA (ADOPTED SON)
S/O LATE RAM VILAS SHARMA, AGED
ABOUT    48   YEARS,   OCCUPATION:
AGRICULTURAL R/O VILLAGE NOORGUNJ
TAHSIL GOHARGAUNJ, DISTRICT RAISEN
(MADHYA PRADESH)



                                                       .....APPELLANT
(NONE FOR THE APPELLANT EVEN IN THE SECOND ROUND)

AND

1.    RADHAKRISHNA SHARMA S/O LATE
      GHASIRAM SHARMA, AGED ABOUT 49
      YEARS,             OCCUPATION:
      AGRICULTURAL   R/O   H.NO.  156
      NARAYAN NAGAR BHOPAL, DISTRICT
      BHOPAL (MADHYA PRADESH)



2.    STATE OF M.P. THROUGH ITS
      COLLECTOR DISTT. RAISEN (MADHYA
      PRADESH)



                                                    .....RESPONDENTS
(MS. PAPIYA GHOSE - PANEL LAWYER FOR RESPONDENT NO.2/STATE )

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

following:
                                   2                    S.A. No.1162/2019


                                ORDER

Earlier also none had appeared on 11.05.2022 and accordingly, the appeal was dismissed for want of prosecution on 07.02.2023. Thereafter, it appears that MCC No.400/2023 was filed for restoration of appeal. The said application was allowed and this appeal was restored to its original file.

2. Once again none appears for the appellant even in the second round.

3. Thus, it appears that the appellant is simply interested in keeping this appeal pending and instead of arguing the matter on admission, is avoiding the same. 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 12:50:20 +05'30'