Chattisgarh High Court
Akhilesh Kumar Pathak vs Surendra Khanduja on 23 June, 2021
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
W.P.(227) No.223 of 2021
Akhilesh Kumar Pathak S/o Late Suraj Prasad Pathak Aged About 49
Years R/o Near Gandhi Chowk, Juna Bilaspur, Thana City Kotwali,
District Bilaspur Chhattisgarh
---- Petitioner
Versus
1. Surendra Khanduja S/o Late Mulkraj Khanduja Aged About 65 Years R/o
Behind Shiv Takies, Infront Of Anand Hotel Street, Thana City Kotwali,
Tahsil & District Bilaspur Chhattisgarh
2. Brijmohan Lal Sharma S/o Gyarsi Lal Sharma Aged About 69 Years R/o
Dayalband, Bilaspur, Tahsil And District Bilaspur Chhattisgarh
3. State Of Chhattisgarh Through The District Collector Bilaspur
Chhattisgarh
---- Respondents
For Petitioner : Mr. Neeraj Choubey, Advocate.
For respondent No.1 & 2 : None.
For respondent No.3 : Mr. Ashish Tiwari, Govt. Advocate.
Hon'ble Shri Justice Rajendra Chandra Singh Samant
Order on Board
23/06/2021
1. This petition under Article 227 Constitution of India has been brought
being aggrieved by the order dated 10.03.2021 passed by 5 th Additional
District Judge, Bilaspur, District- Bilaspur, C.G. in Miscellaneous Civil
Appeal No.82/2019 by dismissing the appeal.
2. It is submitted by the learned counsel for the petitioner that petitioner
had filed a Civil Suit praying for relief of permanent injunction, which
was registered as Civil Suit No.151-A/2012. The hearing in the case was
fixed on 26.08.2013, on that date, the petitioner and his counsel both
were absent, therefore, the suit was dismissed for non-prosecution.
3. The petitioner had a bona-fide reason for his non-appearance on that
date because he was out of station for business purposes, as he was a
business man. Learned counsel for the petitioner was engaged in
another Court, therefore, he gave appearance at 4:00 pm and he came
to know that case was already dismissed for non-prosecution. The
application for restoration of the Civil Suit under Order IX Rule 9 of
C.P.C. was immediately filed by the petitioner side, which was contested
by the respondent and the order dated 01.11.2019 in M.C.C.
No.74/2014 was passed by the trial Court, dismissing the application of
the petitioner.
4. The appeal was preferred before the Court of Fifth Additional District
Judge, Bilaspur, C.G. which was registered as Miscellaneous Civil
Appeal No.82/2019, this appeal has been decided by the impugned
order and the prayer for restoration of the Civil Suit has been again
rejected by the appellate Court.
5. Relying on the judgment of Supreme Court in the case of Mahendra
Rathore Vs. Omkar Singh reported in AIR 2002 SC 505. It is submitted
that the Courts should adopt justice oriented approach in cases of
condonation of delay.
6. No one appeared on behalf of respondent No.1 and 2, although the
notices were served upon them.
7. Learned State counsel appearing for respondent No.3 has formal
objection.
8. Considered on the submissions and perused the documents filed along
with the petition. This fact is to be noted that the application for
restoration of Civil Suit was immediately filed by the petitioner. Order IX
Rule 9 of C.P.C. provides that to set aside dismissal of a suit, the plaintiff
has to satisfy the Court that there was sufficient cause for his non-
appearance when the case was called for hearing. The reason that has
been assigned by the petitioner regarding him being out of station and
regarding the engagement of his counsel, who did not appear before the
trial Court when the case was called, cannot be simply thrown aside.
The counsel atleast had the duty to appear before the Court and make
some statement whatsoever, but in this case, it appears that the learned
counsel also failed to attend the Court on that date, before the case was
dismissed. By virtue of being engaged as a counsel, the counsel has a
duty towards his clients to appear on his behalf as and when the case is
called at whatever stage. Hence, it appears that in this case, the
counsel has also failed the parties that is the petitioner by not giving
appearance in the Court in time, when it was called for hearing.
9. As it is clearly the view of the Supreme Court in the case of Esha
Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar
Academy & Ors. reported in (2013) 12 SCC 649 that there should be a
liberal, pragmatic, justice oriented, non-pedantic approach in the matters
of condonation of delay and the Courts are not suggested to legalize
injustice but are obliged to remove injustice. Although this view has
been expressed in the matter of condonation of delay, but the same
principle is applicable here also. The manner in which the petitioner has
prosecuted the application under Order IX Rule 9, thereafter, the
Miscellaneous Appeal and by the filing of this petition before this Court,
clearly shows that the petitioner has keen intention to prosecute the Civil
Suit filed by him. Therefore, the dismissing of a Civil Suit only for
technical reason would therefore cause injustice to the petitioner.
Hence, I am of this view that this petition deserves to be allowed. The
petition is allowed. The impugned order and the order or the trial Court
dated 10.03.2021 both are set aside. The prayer of the petitioner under
Order IX Rule 9 of C.P.C. is allowed. The Civil Suit No.151-A/2012 is
restored to its original number. The petitioner is directed to give
appearance before the trial Court on 26.07.2021 for orders on further
proceedings.
10. Accordingly, this petition is disposed off.
Sd/-
(Rajendra Chandra Singh Samant)
Judge
Monika
