Chattisgarh High Court
Hemant Kumar Kose vs Geeta Kose on 19 August, 2021
Page 1 of 3
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
W.P.(227) No. 397 of 2021
1. Hemant Kumar Kose, S/o. Devendra Kumar Kose, aged about 29
years
2. Devendra Kumar Kose, S/o. Late Shadiram Kose, aged about 52
years,
3. Mahendra Kumar Kose, S/o. Late Shadiram Kose, aged about 48
years,
All are R/o Village - Karela (Upervah), Post Upervah, Tahsil Ghumka,
District Rajnandgaon Chhattisgarh.
---- Petitioners
Versus
1. Geeta Kose, W/o. Late Motilal Kose, aged about 52 years,
2. Ku. Rameshwari Kose, D/o. Late Motilal Kose, aged about 33 years,
3. Ku. Lata Kose, D/o. Late Motilal Kose, aged about 31 years,
4. Ku. Asha Kose, D/o. Late Motilal Kose, aged about 30 years,
No.1 to 4 all are R/o. Village Katulbord, Hari Nagar, Durg Tahsil and
District Durg Chhattisgarh.
5. State of Chhattisgarh, Through : The Collector, Durg District Durg
Chhattisgarh.
---- Respondents
For Petitioner : Mr. Rahul Mishra, Advocate
Hon'ble Shri Justice Rajendra Chandra Singh Samant
Order On Board
19/08/2021
1. This petition has been brought being aggrieved by the order dated
30.03.2021, passed in M.J.C./Civil No. 02/2021, by the Sixth Civil
Judge Class-2, Durg, District - Durg (C.G.), by which the application
under Order 9 Rule 13 of C.P.C. filed by the petitioners has been
dismissed.
2. The respondents had filed a Civil Suit No. 44-A/2009 against the
petitioners praying for reliefs of declaration and other reliefs. The suit
was decreed ex-parte against the petitioners on 11.01.2013. The
petitioners then filed an application under Order 9 Rule 13 of C.P.C.
on 29.04.2013 praying to set-aside the ex-parte judgment and decree
against them. This application was registered as M.J.C. No. 3/2013.
During the pendency of that proceeding in MJC, the same was
dismissed on 22.10.2019 for want of prosecution on account of
absence of both the parties. Subsequent to that the petitioners have
again filed an application under Order 9 Rule 13 of C.P.C. praying to
set-aside the impugned order dated 22.10.2019, which has been
registered as M.J.C. No.2/2021, in which, the prayer was made to
restore the proceeding in M.J.C. No.3/2013. The learned trial Court
has by the impugned order held that the order dated 22.10.2019
regarding dismissal of the M.J.C. No.3/2013 is not a decree,
therefore, the application under Order 9 Rule 13 of C.P.C. was not
maintainable and the same was dismissed.
3. Considered on the submissions. There appears to be a
misunderstanding and mistake in mentioning the correct provision of
law. The proceeding, which has been dismissed by the Court, can be
restored on the application made by one of the parties subject to the
satisfaction of the Court regarding sufficient cause or good cause as
the case may be. As the MJ.C. No.3/2013 was not a civil suit,
therefore, the proceeding as provided under Order 9 of C.P.C. shall
not be applicable, but prayer can be made by one of the parties
under Section 151 of C.P.C. for restoration. Mentioning a wrong
provision of law should not be made a ground for dismissal of any
application. The application filed by the petitioners should have been
treated as an application under Section 151 of C.P.C. simply making
prayer for restoration of M.J.C. No.3/2013. Hence, this petition is
allowed at motion stage. The impugned order dated 30.03.2021,
passed in M.J.C/Civil No. 02/2021 is set-aside. The learned Court
below is directed to consider on the application filed by the
petitioners as application filed under Section 151 of C.P.C. for
restoration of M.J.C. No.3/2013 and pass order in accordance with
the law.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Balram
