CPC Not Applicable To Article 226 Proceedings, Court Can Decide Writ Petition On Merits Even Upon Non-Appearance Of Party: MP High Court
While hearing a review petition, the Madhya Pradesh High Court recently upheld its decision of deciding a writ petition in the absence of the Petitioner, observing that it was not mandated to follow the provisions of CPC in the proceedings under Article 226 of the Constitution. The bench comprising Justice Vivek Agarwal noted that it was not the intent of the legislature to require a...
While hearing a review petition, the Madhya Pradesh High Court recently upheld its decision of deciding a writ petition in the absence of the Petitioner, observing that it was not mandated to follow the provisions of CPC in the proceedings under Article 226 of the Constitution.
The bench comprising Justice Vivek Agarwal noted that it was not the intent of the legislature to require a Writ Court to necessarily follow the provisions of CPC-
Thus, it is evident that when the intention of the legislature is not to require the Court to necessarily follow the provisions of Code of Civil Procedure while deciding a writ under Article 226 of the Constitution and they have excluded the writs under Article 226 of the Constitution, to be treated as proceedings under the Code of Civil Procedure, then, it is evident that matter was left to the discretion of the Court to either dismiss a writ petition for default or dispose it of on merits.
Facts of the case were that the Petitioner had filed a petition under Article 226 of the Constitution before the Court regarding a service matter. The Court disposed of the matter on merits in absence of his counsel by taking assistance of the counsel for the State. Aggrieved, the Petitioner sought for a review of the order passed by the Court whereby the petition was disposed of.
The Petitioner submitted before the Court that his writ petition could not have been disposed of on merits in his absence. Placing reliance on the decision of the Supreme Court in Ajit Kumar Singh and others v. Chiranjibi Lal & Ors., it was argued that the matter ought not to have been decided without hearing the Petitioner.
Examining the submissions of parties and documents on record, the Court did not find merit in the arguments put forth by the Petitioner. It noted that the Apex Court in Ajit Kumar Singh case was dealing with the applicability of the provisions of CPC in matters relating to second appeal. Whereas in the case of the Petitioner, the proceedings were under Article 226 of the Constitution. It further opined that a combined reading of Section 141, Order XLI Rule 11 and Order XLI Rule 17 CPC makes it clear that the Court does not have to strictly adhere to the provisions of CPC while dealing with a writ petition under Article 226 of the Constitution-
Thus, it is evident that for second appeal, procedure as prescribed under Order XLI Rule 11 and Order XLI Rule 17 will be applicable and in that context, Hon'ble Supreme Court in case of Ajit Kumar Singh (supra) has held in para 8 of the judgment that second appeal could not have been dismissed on merits. But, in view of the explanation carved out in Section 141, CPC, since procedure provided in the CPC does not include any proceedings under Article 226 of the Constitution and admittedly, writ petition was filed under Article 226 of the Constitution, analogy of order XLI Rule 11 or Order XLI Rule 17 will not be applicable.
With the aforesaid observations, the Court did not find any fault in its decision to dispose of the writ petition of the Petitioner in the absence of his counsel. Accordingly, the review petition was dismissed.
Case Title: Raj Kumar Pateriya v. State of M.P. & Ors.
Citation: 2023 LiveLaw (MP) 25