JANUNABAI Vs. CHHOTESINGH

JUDGEMENT

(1.) The following question is referred to larger Bench for adjudication: "Whether the appeal shall fail for non- service of notice or after dispensing with notice upon the respondents who were ex pane before the court of first instance or they have not submitted the address for service of notice?"

(2.) It was contended that Code of Civil Procedure is not applicable, but rule 242 (3) of M.P. Motor Vehicles Rules, 1994, clearly provides that provisions of Order 41 of First Schedule of Code of Civil Procedure, 1908 shall mutatis mutandis apply to appeals preferred to the High Court under section 173 of Motor Vehicles Act.

(3.) To examine the controversy it will be appropriate to reproduce the provisions of Order 41, rule 14 (4) of Code of Civil Procedure: "Notwithstanding anything to the contrary contained in sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person im- pleaded for the first time in the appellate court, unless he has appeared and filed an address for the service in the court of first instance or has appeared in the appeal." Under sub-rule (4) of Order 41, rule 14 it is provided that the court may dispense with service of notice upon the respondent unless he has appeared and filed an address for the service in the court of first instance or has appeared in the appeal.