Pramod Kumar Sugandhi vs Badrilal
2023 Latest Caselaw 16156 MP

                                    -1-


       IN THE HIGH COURT OF MADHYA PRADESH
                    AT I N D O R E
                             BEFORE
                 HON'BLE SHRI JUSTICE VIVEK RUSIA
                    ON THE 3rd OF OCTOBER, 2023


                    MISC. PETITION No. 5681 of 2023

BETWEEN:-
   PRAMOD KUMAR SUGANDHI S/O LATE SHRI S.B. GANDHI, AGED
1. ABOUT 62 YEARS, OCCUPATION: ADVOCATE R/O RAJPUR TEHSIL
   RAJPUR DISTT. BARWANI (MADHYA PRADESH)
   PRADEEP KUMAR SUGANDHI S/O LATE SHRI S.B. GANDHI, AGED
2. ABOUT 52 YEARS, OCCUPATION: ADVOCATE RAJPUR TEH. RAJPUR
   DIST. BARWANI (MADHYA PRADESH)
                                                       .....PETITIONER
(BY SHRI PRADYUMNA KIBE, ADVOCATE)

AND
   BADRILAL S/O RADHESHYAM, AGED ABOUT 28 YEARS,
   OCCUPATION: AGRICULTURE R/O GUJARI CHAUWK NEAR
1.
   KUSHWAHA DHAMSHALA RJAPUR DISTT. BARWANI (MADHYA
   PRADESH)
     STATE OF M.P. THROUGH COLLECTOR BARWANI, DIST. BARWANI
2.
     (MADHYA PRADESH)
                                                    .....RESPONDENTS
(RESPONDENT NO.2 / STATE BY SHRI KUSHAL GOYAL, DEPUTY
ADVOCATE GENERAL)
        This petition coming on for admission this day, the court passed
the following:
                               ORDER

01. The petitioners have filed the present petition under Article 227 of the Constitution of India being aggrieved by the order dated

07.08.2023 passed in RCA/32/2023, whereby the application filed under Order XLI Rule 14(4) of the Code of Civil Procedure, 1908 has been dismissed.

02. Facts of the case in short are as under:-

2.1. The petitioners have filed a suit for possession and mesne profit in respect of land bearing Survey No.322 admeasuring 6.410 hectare situated at Patwari Halka No.35, Rajpur, District - Barwani. The respondents / defendants appeared in the suit on 18.01.2019 and sought time to file written statement. Due to non-appearance of defendant No.2 on 29.03.2019, he was proceeded ex parte. On 12.09.2019, counsel appearing for defendant No.1 pleaded no instructions. Vide order dated 12.09.2019, learned trial Court refused to take written statement submitted by defendant No.1 on record. Thereafter, vide order dated 22.01.2020, defendant No.1 was also proceeded ex parte. Thereafter, vide judgment and decree dated 12.06.2023, the learned trial Court partially decreed the suit in respect of possession in favour of the plaintiffs, but dismissed for the claim of mesne profit. 2.2. The plaintiffs filed RCA/32/2023 before the appellate Court. The plaintiffs filed an application under Order XLI Rule 14(4) of the C.P.C. seeking dispensation of service of notice to the respondents on account of the fact that they were declared ex parte and did not contest the suit before the trial Court. The learned appellate Court vide order dated 07.08.2023 has dismissed the application and directed for payment of process fee. Hence, present petition is before this Court.

03. Shri Kibe, learned counsel for the petitioners submits that under Order XLI Rule 14 of the C.P.C., it is mandatory for the trial Court to

dispense with the service of notice to the respondents / defendants who remained ex parte before the trial Court. Shri Kibe further submits that this issue has been answered by Full Bench of this Court in the case of Jamuna Bai & Others v/s Chhote Singh & Others reported in 2004 (2) M.P.L.J. 376. Reliance has also been placed upon a judgment delivered in the case of Birjiya Bai v/s Kailash Narayan S/o Jwala Prasad & Others reported in 2010 (2) M.P.L.J. 641.

04. Sub-rule (4) of Rule 14 of Order XLI introduced by way of amendment in C.P.C. (Amendment Act, 1976) is reproduced below:-

"Notwithstanding anything to the contrary contained in sub- rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has been appeared in the appeal."

05. The objects and reasons for such amendment is provided under Clause - 90 - Sub-clause (vii) is as under:-

"With a view to avoiding the delay in the disposal of appeal, it is felt that the service of the memorandum of appeal on those parties who had not appeared in the Court of first instance and who had not filed any address for service may be dispensed with. Sub-rules (3), (4) and (5) are being inserted in Rule 14 to achieve this object."

06. In view of the aforesaid objects, the service of notice to those parties can be dispensed with who had appeared in the Court of the first instance and who had not filed any address for service. But in the present case, the defendants appeared before the trial Court through counsel and participated in the proceedings to some extent. The defendants were not declared ex parte before the Court of first instance. Even otherwise with due respect, the Full Bench in the case of Jamuna Bai (supra) did not consider the right of defendants to file cross appeal

after appearance in the first appeal under Order XLI Rule 22 of the C.P.C. The same is reproduced below:-

22. Upon hearing respondent may object to decree as if he had preferred separate appeal.--(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree 2[but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

[Explanation. --A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (2) Form of objection and provisions applicable thereto.--Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.

(3) [***] (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.

(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule."

07. Even if the respondents / defendants did not appear or proceeded ex parte and did not appeal against the impugned judgment and decree, still they have a right to defend the findings recorded against them before the Court below in respect of any issue. They may also file cross objection to the decree which they could have taken by way of appeal. For filing the cross objection, the limitation is one month from

the date of service of notice to him, therefore, by dispensing the service to the respondents, the right of filing cross objection cannot be taken away. Hence, the learned Court has not committed any error while rejecting the application under Order XLI Rule 14 (4) of the C.P.C. No case for interference is made out in the matter.

08. In view of the above, Miscellaneous Petition stands dismissed.

(VIVEK RUSIA) JUDGE Ravi Digitally signed by RAVI PRAKASH Date: 2023.10.06 18:16:44 +05'30'