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Madhya Pradesh High Court

Rana Ajay (D) Lrs. Uttara Rana vs The State Of Madhya Pradesh on 21 September, 2017

     HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                       JABALPUR

Case No.                           MA. No.2545/2010
Parties Name                         Rana Ajay (D) through L.Rs. Uttara Rana
                                                           Vs.
                                                The State of M.P.
Date of Judgment                   21/09/17
Bench Constituted                  Single Bench
Judgment delivered by              Justice Sujoy Paul
Whether approved for reporting NO
Name of counsels for parties       Appellants:Shri Saket Agrawal, Adv.

                                   Respondents: Shri Vishal Dhagat, G.A.

Law laid down                                           -
Significant paragraph numbers                           -

                                 (Judgment)
                                  21.09.2017

This appeal filed under Order 43 Rule 1 (t) of the CPC is directed against the order dated 14-05-2010 passed by 5 th Additional District Judge, Sagar in MJC. No.36/09.

2. In short, the facts narrated by Shri Agrawal, learned counsel for the appellants are that a registered lease was granted by the concerned Collector in favour of the plaintiff's father on 02-04-1938. The lease was in respect of Block No.57, Plot No.4 and 5/1. The said authority on 23-07-1966 cancelled the lease in respect of Plot No.5/1. Aggrieved, the plaintiff filed a suit for declaration, injunction and declaration that the aforesaid order of cancellation of lease dated 23-07-1966 is null and void. The said suit was decreed by trial Court on 19-10-2004. The State filed an appeal, which was dismissed by Appellate Court on 07-07-2006. It was dismissed for non-payment of process fee. Yet another appeal/revision was filed by the State Government alongwith an application for condonation of delay. These applications were decided by Court below on 05-07-2007. The delay was not condoned and it was further held that since the process fee was not paid by the State, the appeal cannot be

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restored. Thereafter, the State filed an application under Order 41 Rule 19 of the CPC alongwith an application under Section 5 of the Limitation Act. These applications were allowed by impugned order dated 14-05-2010.

3. Criticizing this order, Shri Agrawal, learned counsel for the appellants submits that there are conflicting findings given by the Court below in both the order dated 07-07-2006 and 05-07-2007. The appeal itself was not competent, which is evident from order dated 14-09-2007 (Annexure A/6). By this authorization, the Government authorized the authorities to file an appeal before the High Court whereas the proceedings were filed before the Court below. Lastly, it is contended that under order 41 Rule 19 of CPC, the application preferred by the State was not tenable. The Order 41 Rule 19 of CPC is applicable where the appeal was dismissed under Rule 11, Sub-rule (2) or Rule 17 of Order 41 of CPC. In nutshell, the question of re-admission of appeal would arise only when the appeal was dismissed for want of prosecution/default.

4. Shri Vishal Dhagat, learned Government Advocate submits that earlier in view of enabling provision i.e. Order 41 Rule 18, the Court of competent jurisdiction was equipped with the power to dismiss the appeal where notice was not served in consequence of appellant's failure to deposit process fee. This enabling provision itself was omitted from statute book w.e.f. 01-07-2002. In consequence of said omission, Rule 19 of Order 41 of CPC was also amended. The attention of this Court is drawn on the amendment in Order 41 Rule 19 of CPC w.e.f. 01-07-2002 whereby the words "or rule 18" are omitted w.e.f. 01-07-2002. Shri Dhagat submits the basic order of the trial Court dated 07-07-2006 itself is without authority of law. Since the enabling provision to dismiss an appeal for want of payment of process fee is omitted, the consequential provision for re-admission of such appeal dismissed for want of payment of process fee was also omitted. In the peculiar facts and circumstances of this case, the technicalities are of no assistance to the appellants because the basic order passed by the Court below on 07-07-2006 is passed without authority, jurisdiction and

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competence. The respondents cannot be left remediless in view of amendment in Rule 19 of Order 41 of CPC.

5. No other point is pressed by the parties.

6. I have heard the parties at length and perused the record.

7. Order 41 Rule 18 of CPC reads as under:-

"18. Dismissal of appeal where notice was not served in consequence of appellant's failure to deposit costs- [Omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), S. 13(v) (w.e.f. 1-7-2002)]"

Order 41 Rule 19 of CPC reads as under:-

"19. Re-admission of appeal dismissed for default- Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 [****], the appellant may apply to the Appellate Court for the re- admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it things fit.

High Court Amendments -(Madhya Pradesh)- In rule 19 (1), Order 41, after the words the figures "rule 11, sub-rule (2)" insert the words and figures "or rule 15-A" followed by a comma."

8. A combined reading of these provisions makes it clear that the arguments of Shri Dhagat has substantial force. It is clear that the power to dismiss an appeal in case of non-payment of process fee was taken away w.e.f. 01-07-2002. The said power is vested with the High Court only in view of State Amendment by way of Rule 15-A of Order 41 of CPC. The said power is also subject to enabling provision in the High Court Rules. It is also established that since enabling provision of dismissing appeal was deleted w.e.f. 01-07-2002, the relevant clause was also deleted from Rule 19 of CPC. Thus, it is clear like noonday that the appellate Court had committed a jurisdictional error in passing the order dated 07-07-2006 whereby the appeal of the State was dismissed for non-payment of process fee. The said order runs contrary to the provisions of CPC and passed without there being any authority and competence.

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9. So far as the other two points raised by Shri Agrawal are concerned, in my view, the said points are not relevant at this stage. The appeal was not dismissed on the ground that it was incompetent or was filed without there being any authority. It was simply dismissed for non-payment of process fee. Accordingly, I deem it proper to maintain the impugned order whereby the Appeal No.3-A/05 is restored by the Court below. The present appellants may take all possible objections in the proceedings of said appeal and in that event, it will be the duty of the trial Court to deal with said objections in accordance with law.

10. With the aforesaid observations, the appeal is dismissed. No cost.

(SUJOY PAUL) JUDGE mohsin