Ramji Kalar vs Fakir Mohan (Died) Through Legal ...
2022 Latest Caselaw 7012 Chatt

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                                                          AFR

     HIGH COURT OF CHHATTISGARH, BILASPUR

                 WP227 No. 547 of 2018

 Ramji Kalar S/o Nanki Kalar Aged About 66 Years R/o
  Village Pihra, Tahsil Baramkela, Distt. Raigarh Chhattisgarh

                                               ---- Petitioner

                         Versus

1. Fakir Mohan (Died) Through Legal Heirs representative
    1a - Ballabh Kumar Gupta, S/o Late Fakir Mohan, Aged
    About 57 Years R/o Village Pihara, Tahsil Baramkela,
    District Raigarh Chhattisgarh

  1b - Prem Shankar Gupta, S/o Late Fakir Mohan, Aged
  About 54 Years R/o Village Pihra, Tahsil Baramkela, District
  Raigarh Chhattisgarh

  1c - Kamla Kumar Gupta, S/o Late Fakir Mohan, Aged About
  50 Years R/o Village Pihara, Tahsil Baramkela, District
  Raigarh Chhattisgarh

  1d - Kishore Kumar Gupta, S/o Late Fakir Mohan, Aged
  About 47 Years R/o Village Pihra, Tahsil Baramkela, District
  Raigarh Chhattisgarh

  1e - Dropati @ Sumita, D/o Late Fakir Mohan, Aged About
  60 Years R/o Village Koma, Tahsil Burgarh, District :
  Bargarh *, Orissa

   1f - Rambhawati, D/o Late Fakir Mohan, Aged About 57
   Years R/o Village Sariya, Tahsil Baramkela, District Raigarh
   Chhattisgarh
2. Rameshwar since dead Through Legal Heir representatives
    2a - Madhuri W/o Shri Hare Krishna Aged About 40 Years,
    R/o Village Bade Nawapara, Tahsil Baramkela, District
    Raigarh (CG)
   2b -Purnima W/o Prasanna Gupta Aged About 35 Years, R/o
   Village Ruchda, Tahsil Bargarh, District Sambalpur Odisha
   2c Rajnai W/o Shri Raj Kumar Gupta Aged About 33 Years,
   R/o Vilage Kothari, Tahsil Pussaur, District Raigarh (CG)

  2d Pushpa W/o Shri Vijay Gupta Aged About 32 Years, R/o
  Khapadapali, Tahil Pusaure, District Raigarh (CG)

  2e Rakshpal S/o Late Rameshwar Prasad, R/o Village Pihra,
                                     2

      Tahsil Baramkela, District Raigarh (CG)

      2f Om Prakash S/o Late Rameshwar Prasad R/o Village
      Pihra, Tahsil Baramkela, District Raigarh (CG)

      2g - Dev Prakash S/o Late Rameshwar Prasad , R/o Village
      Pihra, Tahsil Baramkela, District Raigarh (CG)
   3. State Of Chhattisgarh Through The Collector, Raigarh,
       District Raigarh Chhattisgarh

                                                 ---- Respondent

For Petitioners Mr. Manoj Kumar Jaiswal, Advocate For LRs of Respondents 1&2 Mr. MK Sinha, Advocate For Respondent/State Mr.Lalit Jangde, Dy. GA

SB.: Hon'ble Mr. Justice Deepak Kumar Tiwari

Order On Board 22/11/2022

1. This petition has been preferred against the order dated

31.3.2018 passed by the Additional District Judge,

Sarangarh, District Raigarh in Misc. Civil Appeal No.2/2017,

whereby, the appeal preferred against the order dated

4.3.2017, dismissing the application filed by defendant

No.1 under Order 9 Rule 13 read with Section 151 of CPC

for setting aside the ex-parte decree dated 13.3.2013 (in

Civil Suit No.44A/11), passed by the Civil Judge, Class-I,

Sarangarh District Raigarh (CG) in Misc. Civil Case

No.2/2013, has been dismissed and thereby, the order

dated 4.3.2017 has been affirmed

2. Learned counsel for the petitioner would submit that, the

respondent/plaintiff had instituted Civil Suit No.44A/2011

for declaration of tile and vacant possession against the

petitioner/defendant. He submits that on the date of

hearing of the suit i.e. 24.9.2012, Counsel for the

petitioner/defendant pleaded no instructions before the

concerned Court and therefore, the Court proceeded ex-

parte and passed the judgment on 13.3.2013. The said ex-

parte proceedings have been challanged by way of appeal,

which was dismissed by the impugned order dated

31.3.2018. He submits that both the Courts below have

ignored the fact that the petitioner/defendant had duly

engaged a counsel for protecting his rights and was also

participating in the proceedings but on the date of the

hearing, the Counsel pleaded no instructions in the matter

since he could not contact the defendant. He further

submits that the parties cannot be penalized for the fault

of the Advocate. Learned counsel places reliance on the

judgment rendered by this Court in the matter of Laxmi

Prasad Vs. Gulam Ali and others, 2008 (1) C.G.L.J. 393.

In the said matter, this Court relied on the judgment

passed by Hon'ble the Supreme Court rendered in the

matter of Tahil Ram Issardas Sadarangani and others Vs.

Ramchand Issardas Sadarangani and another, AIR 1993

SC 1182, wherein, the procedure to be followed when a

counsel pleads no instructions, has been laid down. In the

instant case, such procedure has not been followed,

therefore, the impugned order passed by the Court below

is not sustainable. He prays to allow the petition and quash

the impugned order.

3. On the other hand, learned counsel for the

plaintiffs/respondents supports the impugned order and

submits that it is well-merited and does not call for any

interference.

4. In Tahil Ram Issardas Sadaragani (supra),

it was held by the Apex Court that where the defendants

were not present in person on the date of hearing and the

counsel appearing for them had pleaded no instructions,

interest of justice required that a fresh notice with actual

date of appearance should have been sent to the parties

because the party was not at fault and should not be made

to suffer for the lapse on the part of counsel. On this

premises, the Apex Court allowed the appeal and set-aside

the order of a Division Bench of the High Court of Bombay,

whereby, the dismissal of the application for setting aside

the ex parte decree by the trial Court was upheld.

5. Taking into consideration the aforesaid principle laid down

by the Supreme Court, it is quite vivid that in the present

case also, such procedure has not been followed by the

trial Court and only on the basis of pleading of no

instructions by the Counsel, proceeded ex-parte against

the defendant. Hence, the approach of the trial Court is

not proper and sustainable.

6. Accordingly, the impugned order dated 31.3.2018 passed

in Misc. Civil Appeal No.2/2017 by the Additional District

Judge, Sarangarh, District Raigarh (CG) as also the

judgment dated 13.3.2013 passed by the Civil Judge Class-

I, Sarangarh, District Raigarh (CG) in Civil Suit No.44-A/2011

are set-aside and Civil Suit No.44-A/2011 is restored to its

original number.

7. The parties are directed to remain present before the trial

Court on 15.12.2022. The ex-parte proceedings drawn

against the petitioner/defendant is set-aside. The trial

Court shall proceed with the suit in accordance with law

from the stage as it existed in the suit on 24.9.2012.

8. Since the matter is of the year 2011, the matter shall be

decided in an expeditious manner.

9. Accordingly, the petition is allowed.

Sd/-

( Deepak Kumar Tiwari) Judge

Shyna