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Madhya Pradesh High Court

Smt. Sunita Jain vs Pawan Kumar Jain on 31 August, 2021

Author: Sanjay Dwivedi

Bench: Sanjay Dwivedi

           THE HIGH COURT OF MADHYA PRADESH

                        M.C.C.No.804/2021
                 (Smt. Sunita Jain v. Pawan Kumar Jain)

Jabalpur, Dated : 31.08.2021
     Shri K.C. Ghildiyal, Advocate for the petitioner.

     Shri Sanjay Agrawal, Advocate for the respondent.

Heard on the question of admission.

By the instant MCC, the petitioner is seeking for restoration of Misc. Petition No.1171/2021, which got dismissed by order dated 18.06.2021. The said order is available on record as Annexure-A/4.

Shri Sanjay Agrawal, learned counsel for the respondent by filing a reply has raised a preliminary objection regarding maintainability of MCC on the ground that the order passed by the Coordinate Bench dismissing the misc. petition cannot be said to be an order of dismissal for want of prosecution. In such circumstance, MCC for restoration of misc. petition is not maintainable.

Shri Ghildiyal, learned counsel appearing for the petitioner submits that in view of the facts mentioned in the application and reasons assigned in the order, it very clearly reveals that this is an order of dismissal for want of prosecution, otherwise the Court was under obligation to decide the misc. petition on merits. As per the learned counsel for the petitioner since the misc. petition was not decided on merits, therefore, in the light of the law laid down

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by the Supreme Court in re Thakur Sukhpal Singh v. Thakur Kalyan Singh and another AIR 1963 SC 146 the order passed by the High Court can be treated to be an order of dismissal of petition for want of prosecution.

Shri Sanjay Agrawal, learned counsel appearing for the respondent while relying on the same decision, as has been relied upon by the petitioner, submits that in view of the law laid down therein by the Supreme Court, it is not a case of dismissal for want of prosecution and therefore MCC is not maintainable. Shri Agrawal tries to focus upon the demeanour of the petitioner as she is in the habit of prolonging the matter and since last more than 25 years she has been litigating against the respondent and even the suit filed by the respondent for divorce in the year 1996 could not be finalised hitherto.

Be that as it may, this Court has no occasion to dwell upon the merits or demerits of the case, but what is required at this juncture is to answer a question, "whether the order dated 18.06.2021 passed by the Court dismissing the Misc. Petition can be treated as an order of dismissal of petition for want of prosecution, and whether MCC for restoration of Misc. petition is maintainable or not?"

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From the record, it is gathered that the matter was taken up on 17.06.2021 and on that date, one of the associates of the counsel for the petitioner appeared and informed the Court that his senior had to argue this matter, who was busy in another Court. The Court then permitted the counsel for respondent to start the argument with an understanding that if counsel for the petitioner comes in- between, then he would argue the matter on behalf of the petitioner. However, till 4.25 p.m. arguing counsel for the petitioner did not turn-up, therefore, at the request of associate counsel for the petitioner, the matter was adjourned for next day. On next day, i.e. 18.06.2021 counsel for the petitioner appeared before the Court and apprised the Court that his client (petitioner) has moved an application before the Chief Justice for listing the case before some other bench. The court although refused to grant any adjournment on that count for the reason that such information could have very well been given on previous day, but since that was not done, therefore, the Court insisted the counsel for the petitioner to argue the matter on merits, however, the counsel for the petitioner refused to argue the matter and then left with option, the petition was dismissed.

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The learned counsel for the petitioner submits that as per the provisions of Order 41 Rules 30 & 31 of CPC, the Court was under obligation to decide the petition on merits even though he refused to argue the matter and since it was not so done, therefore, the order passed by the Court should be treated to be an order of dismissal for want of prosecution as the Court itself pointed out the appearance of the counsel, cannot be considered to be appearance of counsel and finally dismissed the petition. To strengthen his contention, the learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Thakur Sukhpal Singh (supra).

However, on a perusal of the order passed by the Supreme Court in the case of Thakur Sukhpal Singh (supra) and looking to the circumstances existing in the present case, I am not convinced with the submissions made by the learned counsel for the petitioner for the reason that the Supreme Court in the said case has also faced the same situation when High Court dismissed the appeal without considering the merits of the case despite the fact that the counsel for the appellant did appear but refused to address the Court. The Supreme Court in paragraph 14 has considered a case decided by the Single Judge of Allahabad

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High Court in the case of Syed Mohammadi Husain v. Mt. Chandro and observed as under:-

"14 In Syed Mohammadi Husain v. Mt. Chandro, Niamatullah J., said at p.285:

"After refusing to adjourn the case, the lower appellate Court was bound to decide the appeal before it. The inability of the pleader to argue did not relieve the Court of the necessity of applying its mind to the facts of the case and to decide it on its merits. A Court is not entitled to dismiss an appeal for 'want of prosecution' only because the appellant, if he appears personally, or his pleader, who represents him, is, for any reason, unable to argue the appeal. The Court should proceed in the manner laid down by 0rder 41 Rules 30 and 31 CPC........ "

This was a case in which the appeal was dismissed for want of prosecution and the judgment therefore dealt with the correctness of the appellate Court in dismissing the appeal for want of prosecution when the appellant, though present in Court, was unable to argue the appeal. This case, however, does not indicate how compliance can be made with the provisions of Rules 30 and 31 of 0rder XLI when the appellant submits nothing to the Court for consideration. This case was considered and over-ruled by the Division Bench of the Allahabad High Court in A.I.R. 1937 All. 284,285, 1937 All. L.R. 439. Mathura Das v. Narain Das on which the High Court of Madhya Bharat relied. This case held that in such circumstances it was sufficient for the Court to pass an order of dismissal for default which did not necessarily mean that the appeal was dismissed for default of appearance but would mean that it was dismissed for default of proof."

(emphasis supplied)

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The Supreme Court declined to accept the view taken by the Single Judge of Allahabad High Court as it was obligatory on the part of High Court to decide the appeal on merits in the manner prescribed under Order 41 Rule 30 & 31 of CPC. Not accepting the view of the Allahabad High Court, the Supreme Court has observed that the said analogy has been overruled by the Division Bench of Allahabad High Court in the case of Mathura Das v. Narain Das observing that in the circumstances existing it was sufficient for the Court to pass an order of dismissal for default which did not necessarily mean that appeal was dismissed for default of appearance but would mean it was dismissed for default of proof. Further, the argument advanced before the Supreme Court by relying upon the case of Barkat Ali v. Gujarat Municipality [AIR 1937 Lahore 691], not accepting the said view the Supreme Court has observed that it is difficult to uphold the view that even when no arguments are urged and no reasons put-forward in arguments against the correctness of decision appealed against, the appellate court should peruse the record and find out for itself whether the judgment is right or wrong. The Supreme Court finally in the case of Thakur Sukhpal Singh (supra) in paragraphs 16 onward has observed as under:-

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"16. We therefore repel the contention for the appellant that the High Court had to decide the appeal after going through the record of the case and the judgment of the Court below and must have complied with the provisions of Rule 31 of Order XLI C.P.C., when the appellant did not address the Court.

17. Another point urged for the appellant is that the High Court should not have rejected the appellant's application for adjournment of the case on January 4, 1955. It is a matter within the discretion of the Court to allow an adjournment and such a discretionary order is, ordinarily, not a matter for the consideration of this Court in an appeal under Article 136 of the Constitution. The petition for special leave did not mention this contention among the grounds of appeal. No special reasons exist for our entering into this contention. The order under appeal gives adequate reasons for rejecting the application for adjournment.

18. The adjournment was sought on the ground that the appellant could not arrange for the payment of fees to his counsel and to instruct him, as he got intimation of hearing of the appeal three days before the date of hearing. The application for adjournment does not form part of the record prepared in this Court. The learned Judges of the High Court were of opinion that the appellant had sufficient time to instruct his counsel and to make arrangements for making the necessary payment to him. The appeal was posted for hearing on Feb. 23, 1954, practically a year before the date of hearing on which the appellant was refused adjournment of the hearing. Between February 23, 1954 and January 4, 1955, the case was also put up for hearing on April 5, and May 4, 1954. In the circumstances, the appellant ought to have completed his instructions to the counsel, prior to February 23, 1954. He failed to do so and failed to complete the instructions till January 4, 1955. In the circumstances, we are of opinion that the exercise of discretion by the

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Court below was not in any way capricious or arbitrary and therefore is not to be interfered with."

Albeit, the learned counsel for the petitioner has made a submission that since the petition was not decided on merits then its dismissal should be treated to be an order of dismissal for want of prosecution and therefore application for restoration of the petition is the only mode available to the petitioner for getting the order set aside. However, I am not convinced with the submission of the counsel for the petitioner because the Supreme Court has very clearly laid down that it is not obligatory for the Court to decide the petition on merits when counsel refuses to address the Court. In the case at hand, it was obligatory on the part of the counsel for the petitioner to apprise the Court on the first date of hearing i.e. 17.06.2021 itself about moving of an application before Hon'ble the Chief Justice for getting the matter listed before another bench and even then, if petition is decided otherwise, the said order could be challenged by the petitioner in the higher forum taking a ground that the order suffers from material irregularity, but without making request to the Court for adjourning the case on the count of pendency of application for transfer of case on first day when

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arguments of opposite counsel were heard, on the next date i.e. 18.06.2021 the learned counsel refused to address the Court and in such situation, the Court can dismiss the case for want of proof as has been held by the Supreme Court in the case of Thakur Sukhpal Singh (supra). Therefore, the order passed by the Writ Court can be assailed by the petitioner in a higher forum but that cannot be recalled by this Court simply on making of application for restoration of Misc. Petition, which got dismissed by the coordinate Bench for the reasons mentioned in the order itself.

In view of the above discussion, this Court is of a firm opinion that the application for restoration under the present facts and circumstances is not maintainable because the order dismissing Misc. Petition No.1171/2021 on 18.06.2021 cannot be treated to be dismissal for want of prosecution.

MCC is accordingly dismissed.

(Sanjay Dwivedi) Judge SUDESH Digitally signed by SUDESH KUMAR SHUKLA DN: c=IN, o=HIGH COURT OF MP, ou=HIGH COURT OF MP, sudesh KUMAR postalCode=482001, st=Madhya Pradesh,

2.5.4.20=1d5e479f08e68eda8f927 1dbbe2c4bc3916264aec736f7c5f5 SHUKLA 885257f5eeaeb7, cn=SUDESH KUMAR SHUKLA Date: 2021.09.03 17:28:02 +05'30'