Madhya Pradesh High Court
Ramswaroop vs Gokul on 3 December, 2020
Equivalent citations: AIRONLINE 2020 MP 1618
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
M.P.No.3142/2020
( Ramswaroop Vs. Gokul and others )
(1)
Gwalior, dated : 03.12.2020
Shri G.P.Chourasia, Advocate for the petitioner.
In pursuance of the directions issued by the Apex Court and
guidelines issued by the High Court of Madhya Pradesh in the wake
of COVID-19 outbreak, the matter was taken up through video
conferencing while adhering to the norms of social distancing
prescribed by the Government.
I.A. No.7472/2020, an application for urgent hearing is
considered and allowed.
Heard on the question of admission.
In this petition under Article 227 of the Constitution of India,
the petitioner is aggrieved by the order dt.28.12.2019 (Annexure P/2)
passed by the Additional Commissioner, Gwalior Division, Gwalior,
whereby the appeal preferred against the order of the SDM Datia has
been dismissed on the ground of default of non-service of the
respondents No.1 and 2. The petitioner being aggrieved by the
aforesaid order, had preferred an application under Section 35 (3) of the M.P.Land Revenue Code 1959 (hereinafter shall be referred to as MPLRC) before the Additional Commissioner, Gwalior Division, Gwalior seeking restoration of the appeal dismissed in default. Aforesaid application was also dismissed vide order dt.20.10.2020 (Annexure P/1).
Brief facts leading to filing of this case are that an application was filed by the petitioner under Section 110 of the MPLRC for HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.P.No.3142/2020 ( Ramswaroop Vs. Gokul and others ) (2) mutation before the Naib Tahsildar, Tahsil Narwar, District Shivpuri. The aforesaid mutation was sought by the petitioner on the basis of the will executed by late Mutiyan in his favour. Naib Tahsildar allowed the application under Section 110 of the MPLRC and name of the petitioner was directed to be mutated over the property in question. Thereafter the respondents being aggrieved by the aforesaid order filed an appeal in the year 2014 before the SDM Datia. SDM Datia without considering the facts of the case, vide order dt.15.07.2014 set aside the order passed by the Naib Tahsildar and a direction was also issued to mutate the name of the respondents. Being aggrieved, the petitioner challenged the aforesaid order in appeal before the Additional Commissioner, Gwalior Division, Gwalior but merely on the ground that since the respondents No.1 and 2 have not been served in spite of repeated opportunities granted to the petitioner, appeal was dismissed in default. Against the same, an application under Section 35 (3) of the MPLRC was filed, which was also dismissed vide order dt.20.10.2020 (Annexure P/1). Being aggrieved by the same, present petition has been filed.
Learned counsel for the petitioner submits that the impugned orders dt.28.12.2019 and 20.10.2020 (Annexure P/1 and P/2 respectively) are illegal, arbitrary and contrary to law, therefore, they deserve to be set aside. According to Order V Rule 20 of the CPC, modes and methods of service of notice are prescribed for the HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.P.No.3142/2020 ( Ramswaroop Vs. Gokul and others ) (3) parties, who remained un-served, but the appellate court without following the provisions and without resorting to the alternative mode of service of notice, has dismissed the appeal, by which the petitioner is suffering irreparable injury. He further submits that the law is very much settled that if a suit is dismissed for non- compliance of order, then the suit may be restored, as held by this Court in the case of Devendra Kumar Vs. State of M.P. and others
- 1998 (2) JLJ 56. He further submitted that for the fault of the counsel, the litigant should not be made to suffer. As such, the appellate court ought to have allowed the application and restored the appeal.
Taking into consideration the facts and circumstances of the case so also the legal position, this court is inclined to allow the petition. Moreover, in the order dt.20.10.2020 (Annexure P/1), it is stated in the last but one para that the petitioner had already deposited the correct address and envelopes for service of notice on the respondents No.1 and 2 on 10.12.2019 but the same was not recorded by the learned Commissioner in the order sheet and thereafter those envelopes were found to be missing.
Accordingly, this petition stands allowed. Impugned order dt.20.10.2020 (Annexure P/1) passed in Case No.13/2020-21/B-121 and dt.28.12.2019 (Annexure P/2) in case No.369/13-14 appeal are hereby set aside. The petitioner is directed to file the process and correct address for service of notice on respondents No.1 and 2 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.P.No.3142/2020 ( Ramswaroop Vs. Gokul and others ) (4) within fifteen days from the date of receipt of certified copy of this order and after service of notice, the appeal may be heard on its own merits.
Petition stands allowed to the extent indicated hereinabove. It is made clear that this court has not expressed any opinion on the merits of the case.
(S.A.Dharmadhikari) Judge SP SANJEEV KUMAR PHANSE 2020.12.03 17:47:39 +05'30'