Smt. Kamla Bai vs Maganlal Rai & Ors.
2023 Latest Caselaw 6763 MP

                                                            1



                          IN THE        HIGH COURT OF MADHYA PRADESH
                                             AT J A B A L P U R
                                                BEFORE
                             HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                       ON THE 26th OF APRIL, 2023
                                      SECOND APPEAL No.542 of 2000
                          BETWEEN:-
                                SMT. KAMLA BAI, AGED 30 YEARS,
                                D/O MATHOLE KURMI, OCCUPATION
                                CULTIVATOR,    R/O     VILLAGE
                                SINGRAMPUR,     TEHSIL     AND
                                DISTRICT DAMOH (M.P)

                                                                              .....APPELLANT
                          (BY NONE)
                          AND
                          1.   SMT.   MAGANLAL,     WD/O    LATE
                               MAGANLAL RAI, AGED ABOUT 65
                               YEARS, R/O VILLAGE SINGRAMPUR,
                               NEAR    KHARMAI,   INFRONT     OF
                               HARDOI    BABA,   TAH     JABERA,
                               DISTRICT DAMOH (M.P)

                          2.   ONKAR RAI, S/O MANGANLAL RAI,
                               AGED 29 YEARS, BOTH RESIDENT OF
                               VILLAGE SINGRAMPUR, TEHSIL AND
                               DISTRICT DAMOH (M.P)

                               3. SECRETARY, BHUDAN          BOARD,
                               SIMITI, BHOPAL (M.P)




                                                                      .....RESPONDENTS
                          (BY NONE)

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

None for the parties.

Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 4/27/2023 10:50:01 AM

2. On 10.04.2023 also, none had appeared 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 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 subrule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in

Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 4/27/2023 10:50:01 AM

subrule (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 tarun

Signature Not Verified Signed by: TARUN KUMAR SALUNKE Signing time: 4/27/2023 10:50:01 AM