Gappu Teli & Ors. vs Sitaram & Ors.
2023 Latest Caselaw 6784 MP

                                1            S.A. No.521 of 2000



IN    THE    HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 26th OF APRIL, 2023
              SECOND APPEAL No.521 of 2000
BETWEEN:-

1.   GAPPU TELI S/O SHRI BHIKKHI TELI,
     R/O GHANSOR TEHSIL KEOLARI,
     DISTRICT SEONI (MADHYA PRADESH)
2.   SALMA FIRDOSH W/O NADIR ALI R/O
     NEAR DIWAN MAHAL, KATANGI
     ROAD, SEONI, TEHSIL AND DISTRICT
     SEONI (MADHYA PRADESH)


                                         .....APPELLANTS
(BY NONE)
AND
1.   SITARAM S/O SUKHLAL KIRAR, AGED
     62     YEARS    R/O     VILLAGE
     PIPARIAKALA, TEHSIL AND DISTRICT
     SEONI (MADHYA PRADESH)
2.   SMT. GIRLA BAI, AGED ABOUT 55
     YEARS, W/O SITARAM KIRAR R/O
     VILLAGE PIPARIAKALA, TEHSIL AND
     DISTRICT SEONI (MADHYA PRADESH)
3.   VISHWANATH KIRAR AGED ABOUT 25
     YEARS, S/O SITARAM KIRAR R/O
     VILLAGE PIPARIAKALA, TEHSIL AND
     DISTRICT SEONI (MADHYA PRADESH)
4.   GAJANAND KIRAR AGED ABOUT 23
     YEARS, S/O SITARAM KIRAR R/O
     VILLAGE PIPARIAKALA, TEHSIL AND
     DISTRICT SEONI (MADHYA PRADESH)
5.   GITA KUMAR, MINOR, THROUGH
     GUARDIAN SITARAM KIRAR R/O
     VILLAGE PIPARIAKALA, TEHSIL AND
     DISTRICT SEONI (MADHYA PRADESH)
6.   THE STATE OF M.P. THROUGH
     COLLECTOR, SEONI, DISTRICT SEONI
                                        2                  S.A. No.521 of 2000



     (MADHYA PRADESH)
                                            .....RESPONDENTS
(BY NONE)

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

On 16/07/2014 and 10/04/2023, none had appeared for the parties.

2. Even today none appears for the appellants.

3. Accordingly, it appears that the appellants must have lost their 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 non-appearance 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 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 shubhankar Digitally signed by SHUBHANKAR MISHRA Date: 2023.04.27 15:24:13 +05'30'