RAM SINGH Vs. GULAB RANI

JUDGEMENT

(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.

(2.) 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.

(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 Brijmj Singh v. Smt. Bitto 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):