What is the duty of motor accident claim tribunal if claimant is not coming before it for prosecuting his case?

  Taking into consideration the reasons given hereinabove, the learned Tribunal has failed to take into consideration the benevolent object of the M.V. Act, where no claim petition could be dismissed for default without any decision on merits. The learned Tribunal is always require to decide the claim petition on merits, if at all, after giving a reasonable time, the claimant himself would not be in a position to adduce evidence, then the learned Tribunal ought to have called for Form No.54 from the police for verifying the facts and should have granted the compensation amount accordingly.{Para 8}

Gujarat High Court

L H Of Sanjaybhai Ashokbhai Vaghela vs Ashokbhai Bachubhai Vaghela (Parties ... on 12 October, 2022

Bench: Gita Gopi

R/Special Civil application No.6152/2022

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Questions and answers in law part 12

Q.1 What is limitation for filing suit for eviction against tenant on ground of subletting?

Ans:- After hearing both the learned Counsel, and after perusal of the Trial Court judgment and the lower Appellate Court judgment, it is clear that in the instant case, though the tenancy was created in favour of Respondent No. 1, the Respondent No. 1 never stayed in the suit premises, right from inception, i.e. 1st February, 1969. On the contrary, the Respondent No. 1 had illegally sub-let the same to Respondent Nos. 2 and 3 from 1st February, 1969. If that be so, the breach of tenancy conditions occurred on 1st February, 1969, and the suit ought to have been filed within 12 years, as per Article 66 of the Limitation Act. Ex-facie the suit is barred by law of limitation. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 684 of 1991

Decided On: 05.12.2006

 Shri Taherbhai Taiyebhai Poonawala, Vs.  Shri G. Hamid Hasan Patel 

Hon'ble Judges: 

Dr. S. Radhakrishnan, J.

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Whether defendant can file cross objection if suit against it is dismissed in default?

We find that the High Court has failed to draw the distinction

between the decree and a finding on an issue. It is the decree

against which an appeal lies in terms of Section 96 of the Code.

Decree in terms of Section 2(2) of the Code means formal

expression of an adjudication conclusively determining the rights of

the parties. The defendants-State could not file an appeal against

a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 17486 OF 2017

STATE OF ANDHRA PRADESH  Vs B. RANGA REDDY

HEMANT GUPTA, J.

Dated: AUGUST 09, 2019.

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Supreme Court: Decree Against Plaintiff By Default Bars Fresh Suit On Same Cause Of Action By Successor In Title

 After hearing learned counsel for the parties, it is apparent
from the order of dismissal of the prior suit that it was dismissed
under the provisions of Order IX Rule 8 of the CPC as the counsel
for defendants was present and counsel for the plaintiffs was
absent. In view of the provisions contained in Order IX Rule 9
decree against plaintiffs by default bars fresh suit. Order IX Rule
9 is extracted hereunder:-
“9. Decree against plaintiff by default bars fresh
suit
(1) Where a suit is wholly or partly dismissed under
rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause
of action. But he may apply for an order to set the
dismissal aside, and if he satisfies the Court that
there was sufficient cause for his non-appearance
when the suit was called on for hearing, the Court
shall make an order setting aside the dismissal
upon such terms as to costs or otherwise as it
thinks fit, and shall appoint a day for proceeding
with the suit.
(2) No order shall be made under this rule unless
notice of the application has been served on the
opposite party.”
7. In view of the aforesaid, High Court erred in law in holding
that the subsequent suit was based on different cause of action, as
such it was maintainable. The impugned judgment and order is
patently illegal. Thus, it is set aside and the suit is ordered to
be dismissed as it was not maintainable. The purchaser is sailing
in the same boat as that of the original plaintiffs, he cannot be
said to be having better rights than the original plaintiffs.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 6424/2019

MAYANDI  Vs  PANDARACHAMY 

Dated:AUGUST 19, 2019.

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Whether appeal is maintainable if miscellaneous application is dismissed in default?

The statutory provision of Order XLIII Rule 1(c) and 1(d) Code of Civil Procedure uses the words "rejecting an application". When the appeal is provided on rejection of an application, we need not read any further pre-condition in the word rejecting. When the right of appeal has been given on "rejecting" an application the said right cannot be read to limit the right of appeal only when application is rejected on merit. Taking any such interpretation will be nothing but adding words to statute which is clearly impermissible.

22. Full Bench of Madhya Pradesh High Court in Nathu Prasad (supra) case had occasion to consider the words "rejecting an application" as contained in Order XLIII Rule 1(c) Code of Civil Procedure. After considering the earlier judgments of the different High Courts the Full Bench opined as follows:

...In our opinion, there is nothing in the wording of Order 43 Rule 1(c), Code of Civil Procedure to restrict it to rejection on merits. The words "rejecting an application" are comprehensive enough to include dismissal for default on rejection, in any other situation whatever.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9409 of 2017 (Arising out of SLP (C) No. 28713 of 2013)

Decided On: 21.07.2017

Jaswant Singh and Ors. Vs. Prakash Kaur and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2018) 12 SCC 249

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Whether oral application is maintainable for restoration of matter dismissed in default?

Having regard to the number of applications, which are filed, we reiterate the observations of this Court in Shamdasani's case and hold that where a matter is dismissed in default on account of slight negligence on the part of the party or Advocate in appearing before the Court, an oral application for restoration may be considered if made before the rising of the Court and it is not necessary for the party to file an application for restoration in writing.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Misc.C.A. No. 677 of 2009 in Writ Petition No. 2158 of 2009

Decided On: 06.07.2009

 Sanjay Dagadappa Kapse Vs  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.A. Bobde and F.M. Reis, JJ.

Citation: 2010 (1) ALLMR 263

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Whether dismissal of earlier eviction petition in default would operate as res judicata to subsequent eviction petition?

In Hariender Kaur Vs. Sharan Gurdev Singh MANU/PH/0323/2008 : 2008 (2) PLR 478, it was also similarly held that the principles regulating the Code of Civil Procedure would not operate and there would not be a res judicata as such and reliance was also placed upon the judgment of the Apex Court. It was held as under:

"6. Full Bench of this Court in the case of Amar Singh and Anr. v. Dalip MANU/PH/0334/1981 : 1981 PLR 649 has held that Section 11 Civil Procedure Code deals with the decisions of the Civil Courts only and the decision of the court of exclusive jurisdiction/Tribunals are not covered by that section. The decisions of Tribunals and Courts of exclusive jurisdiction debar the raising of the issues in a civil suit on matters which are exclusively within their jurisdiction not because of Section 11 but because of the provisions contained in the statute creating those Tribunals or Courts. Sometimes, their decisions operate by way of res-judicata under the general principles of res-judicata also but never because of the provisions of Section 11."

7. Then in Sheodan Singh v. Daryao Kunwar, MANU/SC/0264/1966 : AIR 1966 Supreme Court 1332, it is held that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on merits. It is observed that:

"....for example, the former suit was dismissed by the trial. Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit."

8. As held in N.R. Narayari Swamy's case (supra), grounds of bona fide requirement or non-payment of rent is a recurring cause. Even otherwise, the principles regulating the procedure under the Code of Civil Procedure are not strictly applicable to proceedings under the Act. In view of the position as noticed, it is not possible to hold that withdrawing a petition under Section 13 of the Act can act as res-judicata for the petitioner to prosecute his petition under Section 13-B of the Act. No other, point is urged before me."

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CR No. 8057 of 2016 (O&M)

Decided On: 05.07.2017

Sham Lal  Vs. Vinod Kapoor and Ors.

Hon'ble Judges/Coram:

Gurmeet Singh Sandhawalia, J.

Citation: 2017(2) RCR(Rent) 344

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Whether appeal is maintainable if application is dismissed in default?

The statutory provision of Order XLIII Rule 1(c) and 1(d) Code of Civil Procedure uses the words "rejecting an application". When the appeal is provided on rejection of an application, we need not read any further pre-condition in the word rejecting. When the right of appeal has been given on "rejecting" an application the said right cannot be read to limit the right of appeal only when application is rejected on merit. Taking any such interpretation will be nothing but adding words to statute which is clearly impermissible.

22. Full Bench of Madhya Pradesh High Court in Nathu Prasad (supra) case had occasion to consider the words "rejecting an application" as contained in Order XLIII Rule 1(c) Code of Civil Procedure. After considering the earlier judgments of the different High Courts the Full Bench opined as follows:

...In our opinion, there is nothing in the wording of Order 43 Rule 1(c), Code of Civil Procedure to restrict it to rejection on merits. The words "rejecting an application" are comprehensive enough to include dismissal for default on rejection, in any other situation whatever.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9409 of 2017 (Arising out of SLP (C) No. 28713 of 2013)

Decided On: 21.07.2017

Jaswant Singh and Ors. Vs. Prakash Kaur and Ors.

Hon'ble Judges/Coram:
A.K. Sikri and Ashok Bhushan, JJ.
Citation: AIR 2017 SC 5275

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Whether criminal appeal can be dismissed in default?

It is seen that the learned Judge has dismissed the appeal for
default. It means the conviction and sentence are confirmed without a
hearing. It is not a merit disposal. A suit can be dismissed for default. But
not a criminal appeal. So, the impugned judgment passed by the learned I
Additional Sessions Judge is vitiated.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED : 13.06.2016  

CORAM   
 DR.JUSTICE P.DEVADASS            

C.R.L.RC(MD) No.190 of 2016  
and Crl.M.P.(MD) No.2672 of 2016 

Kalaiselvi  Vs    Sivasubramanian                               

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Whether motor accident claim petition can be dismissed in default after framing of issues?

The subject-matter of dispute is no more res integra. A
Division Bench of this Court, speaking through Justice Dipak Mishra
(as he then was), in the case of Bhagaban Mallik-Vrs.-Nagendra
Biswal and another 1996(II) OLR 298 in paragraph 8 of the report
held thus:-
“ 8. By incorporation of Rule 20, Order 9 has been
made applicable. The said rule has to be read in harmony
with other Rules. Rule 5 confers express power on the
Tribunal to dismiss an application in a summary manner.
As already indicated earlier Rule 16 deals with framing of
issues. Rule 17 provides that after framing the issues the
Claims Tribunal shall proceed to record evidence thereon
which each party may desire to adduce. As envisaged under
Rule 19 the Claims Tribunal in passing the order shall
record concisely in a judgement the findings on each of the
issues framed and the reasons for such finding and make an
award, justifying the amount of the compensation to be paid
by the insurer and also the person or persons to whom
compensation shall be paid. If an application is not
summarily dismissed it continues to reach its logical end,
and the logical end is as provided for under Rule 19 of the
Rules. That apart, Sec. 166 (old Sec.110-B) casts a mandate
on the Tribunal to pass an award determining the amount of
compensation. Reading the Rules in juxtaposition of Sec.
166 of 1988 Act (110-B of the old Act) it is beamingly clear
that the Tribunal has no jurisdiction to dismiss a claim
petition for default after issues have been framed. But, if an
award has been passed, the same can be set aside taking
resort to Order 9 of the Code (emphasis laid).
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.6360 of 2006

Naliniprava Behera   V Executive Engineer, E.H.T., Keonjhar & another 
PRESENT:
THE  DR. JUSTICE A.K.RATH
Date of judgment: 28.06.2016.
Citation: 2017(1) ALLMR(JOURNAL)101

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Whether application for compensation under motor vehicles Act can be dismissed in default?

The sole question that hinges for consideration is whether

an application for compensation under Section 166 of the Motor

Vehicles Act can be dismissed for default.

5. The subject-matter of dispute is no more res integra. A

Division Bench of this Court, speaking through Justice Dipak Mishra

(as he then was), in the case of Bhagaban Mallik-Vrs.-Nagendra

Biswal and another 1996(II) OLR 298 in paragraph 8 of the report

held thus:-

“ 8. By incorporation of Rule 20, Order 9 has been

made applicable. The said rule has to be read in harmony

with other Rules. Rule 5 confers express power on the

Tribunal to dismiss an application in a summary manner.

As already indicated earlier Rule 16 deals with framing of

issues. Rule 17 provides that after framing the issues the

Claims Tribunal shall proceed to record evidence thereon

which each party may desire to adduce. As envisaged under

Rule 19 the Claims Tribunal in passing the order shall

record concisely in a judgement the findings on each of the

issues framed and the reasons for such finding and make an

award, justifying the amount of the compensation to be paid

by the insurer and also the person or persons to whom

compensation shall be paid. If an application is not

summarily dismissed it continues to reach its logical end,

and the logical end is as provided for under Rule 19 of the

Rules. That apart, Sec. 166 (old Sec.110-B) casts a mandate

on the Tribunal to pass an award determining the amount of

compensation. Reading the Rules in juxtaposition of Sec.

166 of 1988 Act (110-B of the old Act) it is beamingly clear

that the Tribunal has no jurisdiction to dismiss a claim

petition for default after issues have been framed. But, if an

award has been passed, the same can be set aside taking

resort to Order 9 of the Code (emphasis laid).

HIGH COURT OF ORISSA: CUTTACK

W.P.(C) No.6360 of 2006

Naliniprava Behera 

 V

Executive Engineer,

E.H.T., Keonjhar & another 

PRESENT:

 DR. JUSTICE A.K.RATH

Citation: 2017(1) ALLMR(JOURNAL) 101

 Date of judgment: 28.06.2016

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Whether reference made to labour court can be dismissed in default?

 Settlement of industrial dispute being the main object behind the Industrial Disputes Act, 1947, the provisions as extracted above would show that once an industrial dispute which could not be settled in conciliation, the same is referred to the Labour Court or the Industrial Tribunal, as the case may be, for adjudication. The purpose of adjudication is determination of the industrial dispute and the same is expressed in the form of an Award. Therefore, once a Reference under Section 10 of the Industrial Disputes Act is made to the Labour court or the Industrial Tribunal, the said forum is to determine the dispute or question referred to it by appropriate adjudication. The Government along with the Reference also forwards the relevant materials also to the Court or the Tribunal. Thus, once a Reference is made, the Court or the Tribunal has to decide the same on the basis of the materials available on record. Whether any party to the dispute cooperates or not is immaterial. Hence, there arises no question of dismissal of the Reference for default. The Reference can be disposed of only by passing an Award whereby the question referred to it has been determined by the Labour Court or the Tribunal by passing an Award. The Presiding Officer, on the basis of the materials available on record should consider the matter on merits and enter the findings.

Bombay High Court

Sangitabai Bhaskar Kamble vs The Commissioner Aurangabad ... on 20 December, 2016

Bench: R.V. Ghuge

                                                            WP/12096/2016/Group
   

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Whether land acquisition reference can be dismissed in dafault?

On the point as to what should be the form of award and the duty of the court when the claimant is absent or if present fails to adduce evidence, the learned counsel for revision petitioner cited, M.S. Ramaiah and Ors. v. Special Land Acquisition Officer, AIR 1974 Karnataka 122, This case lays down that when a reference is made to the Court (Civil Court), it is its duty to determine the amount of compensation payable for the land or lands acquired; the Court has no jurisdiction to refuse to determine the amount of compensation even where the claimant remains absent or where he is present, fails to adduce evidence; the Court further has to apply its mind and make an award and cannot blindly confirm the award of the Land Acquisition Officer. The case further annunciates that the award which the Court passes must be in the form of a judgment containing the statement of the grounds for the award. Where the claimant remains absent or does not produce evidence, it is not open to the Court to dispose of the reference stating that the claim of the claimant is dismissed or that the reference is rejected. This case is also on the point that the reference cannot be dismissed in default.

Bombay High Court

Kawadu S/O Madhav Bansod vs State Of Maharashtra And Anr. on 2 July, 2003

Equivalent citations: 2004 (1) MhLj 980

Bench: S Mahajan

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Whether court can decide appeal on merit if appellant remains absent?

The Legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub- rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained absent or left un-represented on the day fixed for hearing the appeal. The reason for introduction of such an explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for non-appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant.

We may, in this connection, refer to a judgment of this Court in Abdur Rahman and Others v. Athifa Begum and Others (1996) 6 SCC 62, wherein the scope of explanation to Rule 17(1) of Order 41 CPC came up for consideration. While interpreting the said provision, this Court took the view that the High Court could not go into the merits of the case if there was no appearance on behalf of the appellant. We also endorse that view.

Reportable

Supreme Court of India

Ghanshyam Das Gupta vs Makhan Lal on 21 August, 2012

Bench: K.S. Radhakrishnan, Dipak Misra

Citation:2013(1) MHLJ 16 SC

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Whether application for compensation under motor vehicles Act can be dismissed in default?

 The Act and the Rules framed there under also do not empower the Claims Tribunal to dispose an application merely for default of the applicant without arriving at findings on merits of the case, after the stage of framing issues. In the instant case, issues were framed, and thereafter, the learned Tribunal was required to decide the case on merits with a view to provide substantial justice, instead of entering into the technicalities.

6. On perusal of the application and other relevant papers, it appears that the restoration application was filed by the applicants on 22nd November, 2001 and another restoration application is filed on 28th January, 2004, under Order 9, Rule 4 of the Code, wherein, the applicants have described the reasons and tried to justify their case for restoration of the application. On perusal of the papers, it appears that the applicants are poor persons and coming from the lower strata of the society as they belong to Tribal Community. Therefore, instead of entering into the technicalities and with a view to do the substantial justice, the Court below was required to adopt lenient view. However, the learned Judge has rejected the said application by holding that there is no provision to restore the restoration application in the Code, and therefore, the application was dismissed by the learned Judge. In my opinion, the learned Judge has also failed to appreciate that the parties to such benevolent legislation should not be allowed to suffer on account of lapse or inaction on the part of their Advocate. The Hon'ble the Apex Court also expressed this view in its judgment in the matter of Rafiq (supra). The Court should adopt a liberal approach in dealing with and deciding such an application.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Civil Revision Application No. 263 of 2004

Decided On: 11.03.2011

 Bharatbhai Narsinghbhai Chaudhary and Ors. Vs.
Malek Rafik Malek Himantbhai Malek and Ors.

Hon'ble Judges/Coram:
P.P. Bhatt, J.

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Whether criminal appeal can be dismissed in default?

It is seen that the learned Judge has dismissed the appeal for default. It means the conviction and sentence are confirmed without a hearing. It is not a merit disposal. A suit can be dismissed for default. But not a criminal appeal. So, the impugned judgment passed by the learned I Additional Sessions Judge is vitiated.

Madras High Court

Kalaiselvi vs Sivasubramanian on 13 June, 2016

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

CORAM   
THE HONOURABLE DR.JUSTICE P.DEVADASS            

C.R.L.RC(MD) No.190 of 2016  
and Crl.M.P.(MD) No.2672 of 2016 

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Whether appeal filed by convict can be dismissed in default?

 In the case of Bani Singh (supra), the larger
bench of the Hon’ble Apex Court in the year 1996, has held
that even in absence of convict or his lawyer, the appeal must
be heard on merits, however, the powers conferred under

section 482 of the Code with the High Court were not
discussed at all, which have been now dealt with in the case of
Surya Baksh Singh (supra). Hon’ble Apex Court found that
tendency of the convict to remain absconding, after filing of
the appeal and getting admitted the same, has been increased
to the large extent which has affected the judicial system as
well as an impression is created in the mind of public at large
about absconding convict, whose appeals were heard on
merits even though they had shown scant disrespect to the
judicial system and flouted the order/s passed by the Court
while releasing him on bail/ temporary bail, etc.. It has been
observed by Hon’ble Apex Court in the case of Surya Baksh
Singh (supra) that statutory right of appeal has been misused
by number of convicts by fleeing from the judicial custody to
defeat the ends of justice after getting orders of bail/
temporary bail/ furlough, etc. and escaped beyond the reach
of the law. The Hon’ble Supreme Court has considered ratio
laid down in the case of Bani Singh (supra) however has held
that in case of recalcitrant appellant, the appeal can be
dismissed. While discussing the power of the High Court
u/s.482 of the Code, it has been observed in Para-7 in the case
of Surya Baksh Singh (supra), which reads as under:
“7. Last, but not the least in our appreciation of the law,
Section 482 CrPC stands in solitary splendour. It preserves
the inherent power of the High Court. It enunciates that
nothing in CrPC shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as
may be necessary, firstly, to “give effect to any order under
CrPC”, words which are not to be found in the Code of

Civil Procedure, 1908 (hereafter referred to as ‘CPC’).
Ergo, the High Court can, while exercising inherent
powers in its criminal jurisdiction, take all necessary steps
for enforcing compliance with its orders. For salutary
reason Section 482 CrPC makes the criminal Court much
more effective and all pervasive than the civil Court insofar
as ensuring obedience of its orders is concerned.
Secondly, Section 482 clarifies that CrPC does not
circumscribe the actions available to the High Court to
prevent abuse of its process, from the inception of
proceedings till their culmination. Judicial process
includes compelling a respondent to appear before it.
When the Court encounters a recalcitrant
Appellant/convict who shows negligible interest in
prosecuting his appeal, none of the Sections in Chapter
XXIX CrPC dealing with appeals, precludes or dissuades
it from dismissing the appeals. It seems to us that passing
such orders would eventually make it clear to all that
intentional and repeated failure to prosecute the appeal
would inexorably lead not merely to incarceration but more
importantly to the confirmation of the conviction and
sentence consequent on the dismissal of the appeal.
Thirdly, none of the provisions of CrPC can possibly limit
the power of the High Court to otherwise secure the ends
of justice. While it is not possible to define the concept of
“justice”, suffice it to say that it encompasses not just the
rights of the convict, but also of the victims of crime as
well as of the law abiding section of society who look
towards the Courts as vital instruments for preservation of
peace and the curtailment or containment of crime by

punishing those who transgress the law. If convicts can
circumvent the consequence of their conviction, peace,
tranquility and harmony in society will be reduced to a
chimera. Section 482 emblazons the difference between
preventing the abuse of the jural process on the one
hand and securing of the ends of justice on the other. It
appears to us that Section 482 CrPC has not been given
due importance in combating the rampant malpractice of
filing appeals only for scotching sentences imposed by
criminal Courts.”
13. While considering the case of Bani Singh (supra),
Hon’ble Apex Court in para-12 in the case of Surya Baksh
Singh (supra) has observed as under:
“12. Indeed, the Court in Bani Singh Case was not
confronted by the wilful abscondence of the appellant
concerned. It is noteworthy that the High Court had not
taken steps calculated to secure the presence of the
appellant before it. On the contrary it had palpably
adopted the less tedious course of simply dismissing the
appeal. Bani Singh overruled the Order in Ram Naresh
Yadav which had prescribed that a criminal appeal could be
disposed of on merits only after hearing the appellant or
his counsel. Signally, the Court had observed that in
order to enforce discipline the appeal could be dismissed
for nonprosecution.
In both these cases it is apparent that
the High Court had not taken any steps to secure the
presence of the appellant; in other words, that there was
no material to manifest that the appellant had

abandoned his appeal or had no intention to prosecute it.
In Bani Singh attention of the Court was not drawn to the
views of a Coordinate Bench in Kishan Singh decided four
years previously on 2.11.1992. Having carefully read
through both the opinions we think it important to clarify
that Bani Singh does not cogitate or reflect upon the
options available to the Court which is faced with a
recalcitrant Appellant who is not prosecuting his appeal,
in flagrant violation and abuse of the bail orders granted
in his favour. Kishan Singh deals precisely with the
options open to the Appellate Court at the preliminary
hearing of an appeal.”
14. Hon’ble Apex Court has shown concern about
impact of absconding accused in society in para-16 in the case
of Bani Singh (supra), which reads as under:
"16. We cannot close our eyes to the reality that less than
twenty per cent of prosecutions are successful; the rest are
futile largely because of inept, shoddy or substandard
investigation and prosecution. Even in cases where the
prosecution succeeds in proving the guilt of the
accused, punishment is emasculated by convicts not because
of their succeeding in having their conviction overturned
and reversed by the appellate court, but by going
underground and disappearing from society after receiving
reprieve from incarceration from the appellate court. We
are convinced that the interests of society at large are
being repeatedly sacrificed for the exaggerated, if not
misplaced concern for what is fashionably termed as
Page 14 of 21
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1564 of 2009


NIRAJ DEVNARAYAN SHUKLA  Vs  STATE OF GUJARAT

CORAM:  MR.JUSTICE A.J.DESAI
AND
 MR.JUSTICE A.G.URAIZEE
AND
 MR.JUSTICE K.J.THAKER
Date : 28/07/2015

Citation;2016 CRLJ452

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When complaint for dishonour of cheque should not be dismissed in default?

In the present case, the complainant was not warned
nor any peremptory order was passed. For failing to pay
process fee the complainant will be put to inconvenience
and the case would be thrown away without being decided
on merits.
 MADHYA PRADESH HIGH COURT
 CRR.289/2015
 (Bhupendra Singh Vs. Saket Kumar)
Dated;31.07.2015

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Whether second complaint under Consumer Protection Act is maintainable when first complaint was dismissed for default for non prosecution?

Our attention has been drawn to a decision of this
Court in New India Assurance Co. Ltd. Vs. R. Srinivasan
[(2000) 3 SCC 242] wherein this precise question had
arisen as mentioned in paragraph 5 of this decision. It
is mentioned in that paragraph that the only question is
that in view of the dismissal of the first complaint
filed by the respondent therein, a second complaint on
the same facts and cause of action would not lie and it
ought to have been dismissed as not maintainable.
While dealing with this issue, this Court held in
paragraph 16 as follows:
“This Rule [Rule 9(6) of the Tamil Nadu
Consumer Protection Rules, 1988] is in
identical terms with sub-rule (8) of Rule 4 and
sub-rule (8) of Rule 8. Under this sub-rule,
the appeal filed before the State Commission
against the order of the District Forum, can be
dismissed in default or the State Commission
may in its discretion dispose of it on merits.
Similar power has been given to the National
Commission under Rule 15(6) of the Rules made
by the Central Government under Section 30(1)
of the Act. These Rules do not provide that if
a complaint is dismissed in default by the
District Forum under Rule 4(8) or by the State
Commission under Rule 8(8) of the Rules, a
second complaint would not lie. Thus, there is
no provision parallel to the provision
contained in Order 9 Rule 9(1) CPC which
contains a prohibition that if a suit is
dismissed in default of the plaintiff under
Order 9 Rule 8, a second suit on the same cause
of action would not lie. That being so, the
rule of prohibition contained in Order 9 Rule
9(1) CPC cannot be extended to the proceedings
before the District Forum or the State
Commission. The fact that the case was not
decided on merits and was dismissed in default
of non-appearance of the complainant cannot be
overlooked and, therefore, it would be
permissible to file a second complaint
explaining why the earlier complaint could not
be pursued and was dismissed in default.”
We have also not been shown any rule similar to Order
IX, Rule 9(1) of the Code of Civil Procedure, 1908. That
being so, and in view of the decision rendered by this
Court, with which we have no reason to disagree, we are
of the opinion that the second complaint filed by the
appellant was maintainable on the facts of this case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.557 OF 2016
(Arising out of SLP(C) No.19618 of 2013)
INDIAN MACHINERY COMPANY APPELLANT(s)
 VERSUS
M/S. ANSAL HOUSING & CONSTRUCTION LTD.
Dated;JANUARY 27, 2016
Citation:AIR 2016 SC 2209

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Whether proceeding for grant of maintenance U/S 125 of crpc which is dismissed in default can be restored?

A Division Bench of Punjab and Haryana High Court, in "Smt. Kamla Devi and Ors. v. Mehma Singh" MANU/PH/0646/1989, held that Magistrate can order restoration on sufficient cause being shown because proceedings under Section 125 of the Criminal Procedure Code are civil in nature. The Division Bench observed that in a way, the provisions in Chapter-IX of the Criminal Procedure Code constitute a Code of Procedure by itself. So also, in "Sk. Alauddin alias Alai Khan v. Khadiza Bibi alias Mst. Khodeja Khatun and Ors." MANU/WB/0196/1990 and "Smt. Kusum Devi v. Ram Chandra Maurya and Ors." 2004 (1) Cri153, the Calcutta and Allahabad High Courts, respectively held that order of restoration can be passed by learned Magistrate in an appropriate case when sufficient cause regarding absentia of wife is shown.

13. So far as provisions of Section 362 of the Criminal Procedure Code are concerned, it may be mentioned that the prohibition imposed is to the extent of impermissibility pertaining to alteration of judgement or final order. The recalling of dismissal order cannot be treated as alteration in the judgement or order. There is no alteration or change in the final order and, therefore, the view of the Single Bench of the Calcutta High Court in case of "Mrs. Jamana Yusuf T. Attarwala and Anr." (supra), with great respects, does not appeal to me. I am of the opinion that the provisions contained in Chapter IX of the Criminal Procedure Code are the Code in itself. Once it is found that the Criminal Court has inherent power to grant interim maintenance allowance to the wife in the exercise of powers under Section 125 of the Criminal Procedure Code, then it follows that exercise of such inherent powers can be done for setting right the wrong. The principle "ubi-jus-ibi-remedium" is attracted in such a case. Considering the nature of the proceedings and the powers which may be availed by the learned Magistrate, I am of the opinion that the impugned judgement and order of the learned Sessions Judge is improper and unsustainable.

Equivalent Citation: 2008(110)BOMLR2581, 2009CriLJ70, 2008(6)MhLj468

IN THE HIGH COURT OF BOMBAY AT AURANGABAD

Criminal Writ Petition No. 184 of 2003

Decided On: 25.07.2008

 Sau Mandakini W/o Bhausaheb Pagire
Vs.
 Bhausaheb Genu Pagire and The State of Maharashtra

Hon'ble Judges/Coram:
V.R. Kingaonkar, J.

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