MPHC: Court Can Decide Writ Petition On Merits Even Upon Non-Appearance Of Party

MP High Court JBL

The Madhya Pradesh High Court in the case Raj Kumar Pateriya v. State of M.P. & Ors observed while hearing a review petition and has upheld its decision of deciding a writ plea filed in the absence of the Petitioner wherein the court observed that it was not mandated for the court to follow the provisions of Civil Procedure Code in the proceedings under Article 226 of the Constitution of India.
The bench comprising Justice Vivek Agarwal in the case observed and has noted that it being not the intent of the legislature to require a Writ Court to necessarily follow the provisions of the Civil Procedure Code.
The bench stated that it being evident that when the intention of the legislature is not to be required by the Court for necessarily following the provisions of Code of Civil Procedure while deciding a writ under Article 226 of the Constitution of India and the writs under Article 226 of the Constitution have been excluded by them which is to be treated as proceedings under the Code of Civil Procedure, then the same being evident that matter was left to the discretion of the Court for either dismissing the writ petition for default or to dispose it of the plea on the merits.
Facts of the Case:
A plea has been filed by the Petitioner under Article 226 of the Constitution of India before the court regarding a service matter. The court disposed of the said matter on merits in absence of his appearing counsel by taking assistance of the counsel for the State. The petitioner aggrieved with the same sought for a review of the order passed by the Court wherein the court disposed of the petition. It has also been submitted by the Petitioner before the court that the petitioner writ plea could not have been disposed of on merits in his absence. The court placed reliance on the decision of the Top Court in the case Ajit Kumar Singh and others v. Chiranjibi Lal and Ors, it has been argued before the court that the said matter ought not to have been decided without hearing the Petitioner.
The court while examining the submissions made by the parties and documents on record, the said court did not find merit in the arguments put forth by the Petitioner. The court noted that the Apex Court in Ajit Kumar Singh case was dealing with the applicability of the provisions of Civil Procedure Code in the matters which relates to second appeal. In the petitioner case the proceedings were under Article 226 of the Constitution. It has also been opined by the court that a combined reading of Section 141, Order XLI Rule 11 and Order XLI Rule 17 Civil Procedure Code makes it clear that the Court does not have to strictly adhere to the provisions of Civil Procedure Code while dealing with the writ petition under Article 226 of the Constitution.
Therefore, the court while considering the aforesaid observations did not find any fault in its decision to dispose of the writ petition filed by the Petitioner in the absence of his counsel.
Accordingly, the court dismissed the review petition.

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