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Madhya Pradesh High Court · body

2000 DIGILAW 1117 (MP)

Ramsingh v. Gulab Rani And Ors.

2000-10-12

A.K.MISHRA

body2000
ORDER A.K. Mishra, J. 1. This second appeal has been preferred by the plaintiff. The suit filed by him was decreed by the trial Court for declaration of title and permanent injunction. The suit was filed with respect to agricultural land. First appeal was preferred and the first Appellate Court set aside the judgment and decree passed by the trial Court and the case was remanded to the trial Court allowing the application under Order 6 Rule 17, CPC. Against the said decision of the first Appellate Court, Second Appeal No. 88/91 came to be filed before this Court which was decided on March 7, 1991. The decree passed by the first Appellate Court was set aside and the matter was remanded to first Appellate Court to implead the State of M.P. as a party. It was also directed that compliance of Order 6 Rule 4-A, CPC be also made and appeal may be decided by the first Appellate Court afresh. It appears that thereafter the government was impleaded. However, Order 6 Rule 4-A does not appear to have been complied. In the meantime, before the remand of the matter in the miscellaneous appeal by this Court, as the first Appellate Court had remanded the case to the trial Court, the original case was dismissed on 18-7-1984 for default of appearance of the counsel for the plaintiff. Considering the fact that the suit has been dismissed in default, the plaintiff's counsel stated that he was having no instructions in the matter, hence the Appellate Court proceeded to decide the appeal ex-parte. The Appellate Court has dismissed the appeal on the ground of non-compliance of the provisions of Order 6 Rule 4-A, CPC by the impugned judgment and decree. 2. This second appeal has been admitted by this Court on 29-1-1997 on the following substantial question of law : "Whether the suit of the plaintiff can be dismissed for non-compliance of the provisions of Order 6 Rule 4-A of the Code of Civil Procedure (as amended in Madhya Pradesh) ?" 3. 2. This second appeal has been admitted by this Court on 29-1-1997 on the following substantial question of law : "Whether the suit of the plaintiff can be dismissed for non-compliance of the provisions of Order 6 Rule 4-A of the Code of Civil Procedure (as amended in Madhya Pradesh) ?" 3. The learned counsel for the appellant has submitted that it is a case where the appeal could not be dismissed for non-compliance of the provisions of Order 6 Rule 4-A. He placed reliance on a Division Bench decision of this Court in Brijraj Singh v. Smt. Ditto Devi, 1991 (2) MPJR 279 , in which the following three proportions have been laid down by Shri R.C. Lahoti, J. (as he then was) : (1) the non-compliance with the provisions containing in Order 1 Rule 3-B, CPC does not create jurisdictional incompetence in the Court hearing the suit or appeal solely on account of non-compliance therewith; (2) the defect as to non-compliance with the provisions contained in Order 1, Rule 3-B, CPC can be rectified by joining the State as party to the proceedings and noticing it at the very stage at which the defect is detected or pointed out to the Court; (3) the party on whom lay the primary duty of impleading the State as party to the case having defaulted in doing so, cannot plead the defect at subsequent stage of the proceedings to its own advantage so as to get rid of a decree against it, otherwise well merited. No such decree shall be set aside unless the State be in a position to point out that merits of the case or jurisdiction of the Court has been affected on account of non-compliance with the provisions contained in Order 1 Rule 3-B and Order 6 Rule 4-A, CPC." 4. The learned counsel for the respondent supported the reasons given by the Appellate Court and urged that in spite of direction of the High Court in the remand order, the provisions of Order 6 Rule 4-A have not been complied with hence the appellant is not entitled to any indulgence in the present appeal. 5. In the case of Brijraj Singh (supra), the Division Bench of this Court has laid down that provisions of Order 6 Rule 4-A, CPC should not be construed in such a manner as to cause injustice. 5. In the case of Brijraj Singh (supra), the Division Bench of this Court has laid down that provisions of Order 6 Rule 4-A, CPC should not be construed in such a manner as to cause injustice. No decree passed shall be set aside unless the State be in a position to point out that merits of the case or jurisdiction of the Court has been affected on account of non-compliance with the provisions contained in Order 1 Rule 3-B and Order 6 Rule 4-A, CPC. 6. The learned Court below has not found that merits of the case and jurisdiction of the Court have been affected on account of non-compliance of the provision of Order 6 Rule 4-A, CPC. The purpose of Order 6 Rule 4-A is that information regarding the entire agricultural holding should be furnished so that subject to outcome of the decision, state may ascertain how much land is owned by the holder for the purpose of Ceiling on Agricultural Act. 7. In the instant case, there is yet another reason to interfere and set aside the judgment and decree passed by the first Appellate Court. It appears that the trial Court had dismissed the suit even when the second appeal was pending before this Court. It was not open to the trial Court to dismiss the suit for default of appearance of the plaintiff when second appeal was pending before this Court and the judgment and decree pursuant to which the matter was remanded to the trial Court was itself set aside by this Court. It is under this impression that the counsel for the plaintiff appellant pleaded no instructions as found by the learned first Appellate Court. Thus, it was incumbent upon the Appellate Court to have issued notice to the plaintiff who was respondent before the first Appellate Court. No such notice was issued to the plaintiff by the first Appellate Court. In any point of view, the non-compliance of the provision cannot be said to be fatal as per the Division Bench decision of this Court in the case of Brijraj Singh (supra). The learned counsel for the appellant has submitted that compliance shall be made in the first Appellate Court. 8. In the result, the appeal is allowed. The judgment and decree passed by the Court below are set aside. The learned counsel for the appellant has submitted that compliance shall be made in the first Appellate Court. 8. In the result, the appeal is allowed. The judgment and decree passed by the Court below are set aside. The first appeal is remanded to the Court below for decision afresh and parties are directed to appear before the first Appellate Court on 27-11-2000. No further notice shall be necessary to be issued. Parties shall bear their own costs as incurred.