Ghanshyam Alias Ghasiram vs Shyamlal Vyas
2021 Latest Caselaw 4733 MP

                                                  1                                   MA-909-2007
                     The High Court Of Madhya Pradesh
                                 MA-909-2007
                             (GHANSHYAM ALIAS GHASIRAM Vs SHYAMLAL VYAS AND OTHERS)


             Gwalior, Dated : 26-08-2021
                   Shri Dharmendra Nayak, learned counsel for the appellant.

                   Shri Somyadeep Dwivedi, learned counsel for respondent No.1.

Shri S.M. Bhan, learned counsel for respondent No.5. This miscellaneous appeal has been filed under Order 43 Rule 1 (d) read with Section 151 of CPC against the order dated 16/8/2007 passed by

Third District Judge, Gwalior in Civil Misc. Case No.1/07, whereby an application under Order 9 Rule 13 of CPC has been dismissed treating as not maintainable.

It is submitted by learned counsel for the appellant that the Court below has erred in passing the impugned order as on the date of hearing learned counsel for the appellant had pleaded "No Instructions" before the Court below. The Court below passed the order dated 24/7/2006 and dismissed the suit filed by the appellant/ plaintiff. It is further submitted that no SPC was issued for securing the presence of the plaintiff. It is further

submitted that on the aforesaid date, the plaintiff was busy in the treatment of his wife as brain surgery of her was done and its treatment was going on from AIIMS. The appellant only came to know about the dismissal of the suit when notice was served upon him for removal of construction/ encroachment. Thereafter, an application under Order 9 Rule 13 of CPC read with Section 151 of CPC was filed before the Court below which was dismissed by the Court below vide impugned order dated 16/8/2007 being not maintainable. It is further submitted that as the appellant was busy in the treatment of his wife, therefore, there was sufficient cause for non-appearance of the appellant before the Court below and the Court below has wrongly passed the impugned order. Hence, prayed to allow this miscellaneous appeal by setting aside the impugned order passed by the Court below. In support of his submissions, learned counsel for the appellant relied upon the judgment

ALOK KUMAR 2021.08.27 15:15:26 +05'30' 11.0.8 2 MA-909-2007 passed by the Supreme Court in the cases of [K. Subbarayudu & Ors. vs. The Special Deputy Collector (Land Acquisition), (Civil Appeal No.9288 of 2017 order dated 19/7/2017] as well as the judgments passed by this High Court in the cases of Smt. Kalawati vs. Shri Jagdish Prasad, (1990 MPJR SN 64), Brijendra Singh Bhadauria vs. Usha Singh @

Deepa, [2012 (1) MPLJ 216], Rajeev Hitendra Pathak & Ors. vs. Achyut Kashinath Karekar & Anr., [2012 (1) MPLJ 494].

Per contra, learned counsel for respondent No.1 has submitted that the Court below has rightly passed the impugned order and no interference is required.

Heard learned counsel for the rival parties and perused the materials available on record.

In the present case, it is admitted fact that respondent No.3 had started proceedings under Section 307 (5) of Municipal Corporation Act to remove the encroachment and it is also admitted fact that respondent No.1 had prayed to demolish the encorachment of the appellant as well as of respondent No.5. It is also admitted that appellant and respondent No.5 are real brothers and are residing in separate houses.

The Court below has rejected the application filed by the appellant under Order 9 Rule 13 of CPC by considering that the provisions of Order 9 Rule 13 of CPC are attracted in Section 141 of CPC and not in the proceedings done under Section 307 (5) of Municipal Corporation Act as aforesaid provisions only attracts when plaint is there. The appellant has failed to prove his bonafides before the Court below. The Court below has also observed that against such type of proceedings done under 307 (5) of Municipal Corporation Act, only revision is maintainable.

In view of the aforesaid, this Court comes to the conclusion that the Court below has rightly passed the impugned order dated 16/8/2007 in Civil Misc. Case No.1/07.

This miscellaneous appeal fails and is hereby dismissed being devoid

ALOK KUMAR 2021.08.27 15:15:00 +05'30' 11.0.8 3 MA-909-2007 of merits.

(RAJEEV KUMAR SHRIVASTAVA) ALOK KUMAR JUDGE 2021.08.27 15:15:14 +05'30' 11.0.8 AKS