Rohit vs The State Of Chhattisgarh
2022 Latest Caselaw 4672 Chatt

                                                        NAFR

      HIGH COURT OF CHHATTISGARH, BILASPUR
               Misc.Appeal No. 57 of 2022

1. Rohit S/o Late Kashiram Sahu, Aged About 72 Years,
   Agriculturist R/o. Village Bagdehi, Tahsil Kurud, District
   Dharmtari Chhattisgarh.

2. Ramlal S/o Late Pyarelal, Aged About 87 Years Agriculturist
   R/o. Village Bagdehi, Tahsil Kurud, District Dharmtari
   Chhattisgarh.

3. Lala, S/o. Late Pyarelal Aged About 72 Years Agriculturist
   R/o. Village Bagdehi, Tahsil Kurud, District Dharmtari
   Chhattisgarh.

4. Hemshankar, S/o. Pyarelal Aged About 69 Years
   Agriculturist R/o. Village Bagdehi, Tahsil Kurud, District
   Dharmtari Chhattisgarh.

5. Virendra Kumar S/o Late Gopal Prasad, Aged About 52
   Years Agriculturist R/o. Village Bagdehi, Tahsil Kurud,
   District Dharmtari Chhattisgarh.

6. Somprakash S/o. Late Gopal Prasad, Aged About 48 Years
   Agriculturist R/o. Village Bagdehi, Tahsil Kurud, District
   Dharmtari Chhattisgarh.

7. Shivnandan, S/o. Late Dharam Singh, Aged About 64 Years
   Agriculturist R/o. Village Bagdehi, Tahsil Kurud, District
   Dharmtari Chhattisgarh.

8. Shambhuhari, S/o. Late Dharam Singh Aged About 60
   Years Agriculturist R/o. Village Bagdehi, Tahsil Kurud,
   District Dharmtari Chhattisgarh.

9. Bhumasharan S/o Late Dharam Singh, Aged About 56
   Years Agriculturist R/o. Village Bagdehi, Tahsil Kurud,
   District Dharmtari Chhattisgarh.

10. Harihar S/o Late Dharam Singh Aged About 55 Years
  Agriculturist R/o. Village Bagdehi, Tahsil Kurud, District
  Dharmtari Chhattisgarh.

11. Prabhuranjan S/o Late Dharam Singh Aged About 52 Years
  Agriculturist R/o. Village Bagdehi, Tahsil Kurud, District
  Dharmtari Chhattisgarh.

12. Taamkaran S/o. Late Abhayram, Aged About 69 Years
  Agriculturist R/o. Village Bagdehi, Tahsil Kurud, District
  Dharmtari Chhattisgarh.
   13. Madhav S/o. Late Abhayaram, Aged About 61 Years
    Agriculturist R/o. Village Bagdehi, Tahsil Kurud, District
    Dharmtari Chhattisgarh.

 14. Ajay S/o Late Abhayram Aged About 51 Years Agriculturist
   R/o. Village Bagdehi, Tahsil Kurud, District Dharmtari
   Chhattisgarh.

                                                 ---- Appellants

                            Versus

  1. The State Of Chhattisgarh Through The District Magistrate,
     Dhamatari.

  2. The Sub Divisional Officer (Rev.), Tahsil Kurud, District
     Dhamtari Chhattisgarh.

  3. The Naib Tahsildar, Bhakhara, Up Tahsil Bhakhara,
     District Dhamtari Chhattisgarh.

                                               ---- Respondents

________________________________________________________________
For Appellants             :    Mr. Kshitij Sharma, Advocate.
For Respondents/State      :    Mr. Avinash K.Mishra,
                                Government Advocate.


          Hon'ble Shri Justice Arvind Singh Chandel

                     Judgment On Board
22/07/2022

  1. This appeal has been preferred by the Appellants against

     the order dated 06.04.2022 (Annexure A-1) passed in MJC

     No. 15/2019, passed by the Additional District Judge,

     Camp Court, Kurud, District Dhamtari (C.G.) whereby the

     Court below has dismissed the application filed by the

     Appellants under Order 9 Rule 9 of the Civil Procedure

     Code for restoration of Civil Appeal No.311/2012.


  2. Facts

of the case are that the Appellants/Plaintiffs have

filed a civil suit for declaration and permanent injunction

against the Defendants therein and the suit was dismissed

by the Trial Court. Being aggrieved by the dismissal of the suit, the Appellants preferred First Appeal under Section 96

of the Civil Procedure Code, 1908 which was registered as

Civil Appeal No. 311/2012. The Appeal was fixed for

hearing on 10.05.2019, however, on the said date the

appeal was dismissed for non-appearance of the Appellants

and their Advocate. Since, the Counsel for the Appellants

was unwell on the date of hearing, therefore, he could not

attend the hearing on that date. Immediately after he

recovered from his illness, he inquired about the status of

the appeal and came to know about the dismissal of the

same, thereafter, the Appellants filed an application under

Order 9 Rule 9 of the Civil Procedure Code which was

dismissed by the Court below vide impugned order dated

06.04.2022. Hence, this appeal.

3. Learned Counsel appearing for the Appellants submits that

despite of the fact that the Counsel for the Appellants has

filed his personal affidavit on 15.05.2019, wherein, he has

categorically mentioned that he could not attend the

proceedings of the Civil Appeal on 10.05.2019 on account of

his ill health, the Court below has dismissed the application

stating that the reasons assigned for non-appearance is not

sufficient as no affidavit has been filed as to the ill health of

the Counsel. Therefore, order passed by the Court below is

illegal, arbitrary and erroneous which may liable to be set-

aside.

4. Learned Counsel appearing for the Respondents formally

objected the arguments advanced by learned Counsel for the Appellants.

5. I have heard learned counsel appearing for the parties and

went through the record with utmost circumspection.

6. Dealing with the issue, the Supreme Court in case of Raj

Kishore Pandey v. State of Uttar Pradesh and others 1,

Para 8 held as under:-

8. In our opinion, whether the applicant has made out sufficient cause or not, in the application filed, this Court is required to look at all the facts pleaded in the application. No doubt, the consideration of the existence of sufficient cause is the discretionary power with the Court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the Court in such matters should be to advance the cause of justice and not the cause of technicalities. A case, as far as possible, should be decided on merits.

7. in case of Rafiq and Another v. Munshilal and Another 2,

the Supreme Court in Para 3 held as under:-

3. "The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor 1(2009) 2 SCC 692 2 (1981) 2 SCC 788 is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job."

8. Thus, in the light of aforesaid principles laid down by the

Supreme Court, in the instant case, on 10.05.2019, the

First Appeal was pending before the First Appellate Court

for consideration. On perusal of affidavit of the Advocate for

the Appellants (Annexure A-3), it appears that on

10.05.2019, due to his ill health neither he attended the

Court proceedings nor informed the Appellants in this

regard. The said affidavit was not duly rebutted by the

Respondents/Defendants by way of any counter affidavit.

Therefore, it is well establish that on the date of hearing,

Counsel for the Appellants was not well and due to his ill

health, he was not appeared before the Appellate Court.

Thus, the Appellate Court has wrongly held that the

Appellants are unable to establish any good ground

regarding non appearance of their Advocate on the date of

hearing i.e. 10.05.2019. Looking to the affidavit which was

annexed with the application filed under Order 9 Rule 9 of

the Civil Procedure Code, there was a sufficient cause

available to the Appellants due to that their Advocate did

not appear before the Appellate Court, therefore, the finding

recorded by the Trial Court holding that the cause shown is

not sufficient is erroneous and liable to be set aside.

9. I am of the considered opinion that the Appellants/Plaintiffs

have succeeded in showing sufficient cause for non

appearance on 10.05.2019 when the appeal was called up on hearing. Consequently, the order passed by the Appellate

Court dated 06.04.2022, rejecting the application under

Order 9 Rule 9 of the Civil Procedure Code is hereby set

aside.

10. Accordingly, the appeal is allowed. The Civil Suit No.

311/2012 pending in the Court of Additional District Judge,

Camp Court, Kurud, District Dhamtari (C.G.) is restored to

its original number. The Trial Court shall now proceed to

decide the suit in accordance with law on merits after

affording an opportunity of being heard to all the parties and

the suit be decided expeditiously preferably within a period

of six months from the date of receipt of certified copy of this

order.

11. Certified copy as per rules.

Sd/-

(Arvind Singh Chandel) Judge Shubham