Ajay Kumar Gupta vs Smt. Kalawati
2023 Latest Caselaw 6392 MP

                            1                S.A. No.1734/2021



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. 1734 of 2021
BETWEEN:-
1.    AJAY KUMAR GUPTA S/O LATE SHRI
      BRINDAWAN GUPTA, AGED ABOUT 49
      YEARS, OCCUPATION: KRISHI R/O
      VILLAGE   MADHOGANJ     TEHSIL
      AJAIGARH DISTT. PANNA (MADHYA
      PRADESH)

2.    KAVITA D/O LATE MUNNALA GUPTA
      W/O SHRI AJAY KUMAR GUPA, AGED
      ABOUT 43 YEARS, OCCUPATION:
      KRISHI R/O VILLAGE MADHOGANJ
      TEHSIL AJAYGARH DISTRICT PANNA
      (MADHYA PRADESH)

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

AND
1.    SMT.    KALAWATI    W/O   SHRI
      MATADEEN DHOBI, AGED ABOUT 52
      YEARS, OCCUPATION: KRISHI R/O
      VILLAGE   CHANDRAWAL    TEHSIL
      AJAYGARH     DISTRICT   PANNA
      (MADHYA PRADESH)

2.    ANIL KUMAR S/O LATE MATADEEN
      DHOBI, AGED ABOUT 18 YEARS,
      OCCUPATION: KRISHI R/O VILLAGE
      MADHAVGANJ TEHSIL AJAYGARH,
      DISTRICT PANNA (MADHYA PRADESH)

3.    ANSUIA PATEL S/O LATE DEOPRAYAG
      PATEL, AGED ABOUT 47 YEARS, R/O
      WARD NO. 14 MADHOGANJ TEHSIL
      AJAYGARH,     DISTRICT    PANNA
      (MADHYA PRADESH)
                                    2                   S.A. No.1734/2021


4.   THE STATE OF MADHYA PRADESH
     THROUGH COLLECTOR DISTRICT
     PANNA (MADHYA PRADESH)

                                                     .....RESPONDENTS
(MS. PRASANSHA SINGH BAIS - PANEL LAWYER FOR RESPONDENT
NO.4/STATE )
.........................................................................................................
      This appeal coming on for admission this day, the court passed the

following:

                                ORDER

On 19.01.2023 and 13.02.2023, none had appeared for the appellants.

2. Today also even in the second round, no one is present for the appellants to argue the case on the question of admission.

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 13:03:50 +05'30'