1990 Supreme(MP) 581

IN THE HIGH COURT OF MADHYA PRADESH
S.K. Dubey, J.
Dhanakju - Appellant
Vs.
Govinddas - Respondent
S.A. No. 30 of 1989 (G)
Decided On : 16-10-1990

Headnote:Civil Procedure Code, 1908 – O.1, R.3 – B and O.6, R.4 – A (as inserted in M.P.) – object of the provisions is to protect interest of the State – case pending in appeal – notice should be issued to State by appellate Court itself.

        Short Note

       Without going into the merits of the appeal, learned counsel for the appellant contended that before the lower appellate Court the respondent did not comply with the provisions of the State amendment as incorporated in the Code of Civil Procedure under O.1, R.3 – B and O.6, R.4 – A, CPC; therefore, the Judgment and decree passed by the lower appellate Court is bad in law and cannot be sustained.

       2. Shri J.P. Sharma, learned counsel for respondents No. 1 and 2, placing reliance on a decision of this Court in case of Mahila Bashiranbai (1986 JLJ 777), submitted that this Court now can rectify the defect, can implead the State of M.P. as a party and hear and dispose of the appeal.

       3. Held : The appeal before the lower appellate Court was heard without complying with the said provisions, i.e. the State was not impleaded as a party to the appeal, as the subject – matter of the suit is an agricultural land. Before hearing or proceeding with a case in relation to agricultural land, the statute has put an injunction against the Court, that unless the State is impleaded as a party, the Court shall not proceed with a pending suit or proceeding, which relates to an agricultural land. Therefore, if a party fails to apply to a Court, where such suit or proceeding is pending, the Court before proceeding with such suit or proceeding, can suo motu and may direct a party to implead State as a party to comply the condition precedent for proceeding with such suit or proceeding. In case, even after a direction or order of the Court a party fails to implead State as a party, certainly Court is empowered to take action in accordance with law and can pass an order dismissing the pending suit or proceeding for noncompliance or non – prosecution. [See Shakurkhan, 1989 MPLJ 134=1989 (II) MPWN 99; Mahila Bashiranbai, 1986 JLJ 777; Mohanlal, 1989 (II) MPWN 22 and Shankarlal v. Shankarlal & another, S.A. No. 113/1988, decided on 22.3.1990]. Therefore, on this short ground, the Judgment and decree of the lower appellate Court deserve to be set aside. In Mahila Bashiranbai's case lsupra) the view taken is not contrary, but, on the other hand, this Court, while considering the object of the amendment by section 5 of the Civil Procedure Code, observed that the sole object of the State amendment is to protect interest of the State in a particular class of cases. Whether the State has any interest in any case at any stage of the lis has to be decided by any Court before which any proceeding is pending when the State Amendment Act came into force and this duty is placed, by the State Amendment Act, to be discharged by not only the trial Court but also by the appellate Court, of course, excluding the executing Court, as is made very clear by the explanation appended to the new provision. Without discharging this duty it did not behoove the appellate Court to pass any barren and ominibus order, shifting its responsibility to the trial Court. What is contemplated is that the appellate Court shall issue a notice to the State of Madhya Pradesh to show cause why the State should not be impleaded as a party in the appeal. After the State appears, it will be open to the State to state its case and plead whether it would like to contest the suit on merits and to be added as defendant – respondent in the suit. Should the State plead that, it has to be heard on merits and evidence may have to be adduced. That may be done even at the appellate stage as the Court has the power to receive additional evidence. The appellate Court in these matters is entitled to hear both sides and to give opportunity to both sides in the matter of adducing evidence. There is no necessity for remand for de novo trial. Therefore, it was held that the matter has not to be remitted to the trial Court to proceed afresh, but the lower appellate Court has to proceed from the stage where the appeal was at the time of incorporation of the amendment. Admittedly, the appeal before the lower appellate Court was pending when the State Amendment came into force and, as such, the lower appellate Court has to proceed with the appeal after pleading me State as a party. 1986 JLJ 777, 1989 MPLJ 134, 1989 (11) MPWN 22 and S.A. No. 113/88 relied on. Appeal allowed. Case remanded to appellate Court.