Madhya Pradesh High Court
Smt. Radha Devi vs Bhaskar Prasad on 1 May, 2023
Author: Gurpal Singh Ahluwalia
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 1st OF MAY, 2023
SECOND APPEAL No. 69 of 2016
BETWEEN:-
SMT. RADHA DEVI W/O LATE
CHANDRAMANI SHUKLA, AGED ABOUT 50
YEARS, VILLAGE CHUHIRI THANA
JAITPUR (MADHYA PRADESH)
.....APPELLANT
(NONE FOR APPELLANT )
AND
BHASKAR PRASAD S/O GORELAL
SHUKLA, AGED ABOUT 34 YEARS,
1. VILLAGE CHUHIRI P.S. AND TEHSIL
GOHPARU (MADHYA PRADESH)
SMT. PUNAM W/O BHASKAR SHUKLA,
AGED ABOUT 30 YEARS, VILLAGE
2.
CHUHIRI P.S. AND TEHSIL GOHPARU (M.P)
GORELAL S/O RAMSAJIWAN SHUKLA,
AGED ABOUT 60 YEARS, VILLAGE
3. CHUHIRI P.S. AND TEHSIL GOHPARU
(MADHYA PRADESH)
SMT. AMBIKA DEVI W/O GORLAL
SHUKLA, AGED ABOUT 56 YEARS,
4. VILLAGE CHUHIRI P.S. AND TEHSIL
GOHPARU (MADHYA PRADESH)
RAMADHAR W/O RAMSAJIWAN SHUKLA,
AGED ABOUT 58 YEARS, VILLAGE
5. CHUHIRI P.S. AND TEHSIL GOHPARU
(MADHYA PRADESH)
SMT. DEVKALI W/O NOT MENTION, AGED
ABOUT 54 YEARS, VILLAGE CHUHIRI P.S.
6.
AND TEHSIL GOHPARU (M.P)
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 5/2/2023
1:47:26 PM
2
TARKESHWAR SHUKLA S/O RAMADHAR
SHUKLA, AGED ABOUT 32 YEARS,
7. VILLAGE CHUHIRI P.S. AND TEHSIL
GOHPARU (MADHYA PRADESH)
BALMIK S/O RAGHUVALLABH SHUKLA,
AGED ABOUT 58 YEARS, VILLAGE
8. CHUHIRI P.S. AND TEHSIL GOHPARU
(MADHYA PRADESH)
COLLECTOR SHAHDOL THE STATE OF
9. MADHYA PRADESH DISTT. SHAHDOL
(MADHYA PRADESH)
.....RESPONDENTS
(BY MS. SHANTI TIWARI - PANEL LAWYER FOR RESPONDENT/STATE AND
SHRI MAHABIR PRASAD SHUKLA - ADVOCATE FOR RESPONDENT NO.1
TO 7)
This appeal coming on for admission this day, the court passed the
following:
ORDER
None for the appellant.
2. On 10.03.2022 none had appeared for the appellant. Thereafter
on 24.04.2023 also none appeared for the appellant and accordingly it
was observed that by way of last indulgence the case is being
adjourned.
3. The second appeal is pending since 2016 and still waiting for
arguments on admission.
4. Since nobody had appeared for the appellant on the last two
occasions and even today none appeared for the appellant, therefore, it
appears that the appellant must have lost his interest in prosecuting this
appeal.
5. 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.
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 5/2/2023
1:47:26 PM
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
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,
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 5/2/2023
1:47:26 PM
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."
6. Accordingly, the appeal is dismissed for want of prosecution.
(G.S. AHLUWALIA)
JUDGE
tarun
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 5/2/2023
1:47:26 PM
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 5/2/2023
1:47:26 PM
