KAMLA Vs. HARBHAJAN SINGH

JUDGEMENT

(1.) It is contended by learned counsel for the appellant, on the authority of the Full Bench Judgment of Madhya Pradesh High Court, in Jamuna Bai (Smt) v. Chhote Singh, reported in 2004 (2) AJR 210, and an interim order passed by this Court on 7-4-2004, in Lalit Kumar Gelara v. M/s. Softtax, SBCMA No. 353/97, that in view of provisions of O. 41, R. 14 (4) of the Civil Procedure Code service of unserved respondents be dispensed with, as they remained absent before the trial Court.

(2.) I have considered the submission, and find, that the order in Lalit Kumar Gelara's case, simply proceeds on the Judgment in Jamuna Bai's case (2004 (2) AJR 210) (supra), and therefore, I have gone through the Judgment in Jamuna Bai's case, and despite all my earnest efforts, I have not been able to persuade myself to agree with the proposition propounded by Hon'ble MP High Court in Jamuna Bal's case. In para No. 9 thereof, the provisions of O. 41, R. 14 (4) have been interpreted in the manner, that expression "proceedings incidental to an appeal", shows, that as and when appeal is filed and admitted for hearing, after admission the next Incident in the appeal is of issuing notice to respondents. Thus, issuance of notice to respondents will be a "proceeding incidental to an appeal", and it has also been held that effect of dispensing with service is, that the respondent remains a party in the appeal, but service of notice is dispensed with, and it cannot be termed as deleting the name of unserved respondents. On the contrary they continue to remain party in the appeal. Reference was also made to Judgment of Hon'ble Supreme Court in the case of A. Robert v. United Insurance Company Ltd., (AIR 1999 SC 2977), but then, in Jamuna Bai's case Itself it was noticed, that controversy involved in that case was different.

(3.) For proper appreciation of the legal position, I may gainfully quote the provisions of O. 41, R. 14 (4) of the CPC, which reads as under :