Madhya Pradesh High Court
Hari Sahu vs Kharsiya @ Gulabrani (Now ... on 11 April, 2022
Author: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
ON THE 11th OF APRIL, 2022
CIVIL REVISION No. 425 of 2017
Between:-
HARI SAHU S/O RAMRATAN SAHU , AGED ABOUT
48 YEARS, OCCUPATION: BUSINESS R/O PURANA
GOLA, NAUGAON, TAHSIL NAUGAON, (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI J.L. SONI, ADVOCATE )
AND
1. KHARSIYA @ GULABRANI (NOW DECEASED) THR.
LRS UMASHAKNKAR S/O SHRI SITARAM SAHU
R/O PURANA GOLA, NAUGAON, TAHSIL
NAUGAON, DIST. CHHATARPU (MADHYA
PRADESH)
2. UMASHANKAR S/O SHRI SITARAM SAHU PURANA
GOLA NAUGAON TAH. NAUGAON (MADHYA
PRADESH)
3. SHIV KUMAR S/O SHRI SITARAM SAHU PURANA
GOLA NAUGAON TAH. NAUGAON (MADHYA
PRADESH)
4. MURARI S/O LATE RAMRATAN SAHU PURANA
GOLA NAUGAON TAH. NAUGAON (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI RAJKAMAL CHATURVEDI, ADVOCATE FOR
RESPONDENTS NO. 1 AND 2 )
This revision coming on for admission, this day, the court passed the
following:
ORDER
With the consent of both the parties, the case is finally heard.
This civil revision has been filed by the applicant / defendant against the
order dated 13.09.2017 passed in Miscellaneous Civil Appeal No.13/2012 by the
Additional District Judge, Naogaon, District Chhatarpur, whereby the application
filed by the plaintiffs/respondents No.1 & 2 under Order 9 Rule 4 of CPC has
been allowed and the plaintiffs’ suit which was dismissed for want of
prosecution has been restored to its original number.
2. Briefly stated facts of the case are that the plaintiffs / respondents no. 1 and 2
filed a civil suit no.10-A/02 (new no.307-A/08) against the petitioner and
respondent no. 3 for declaration of title, permanent injunction and restoration of
possession over the suit property. The plaintiffs failed to appear in the trial Court
to produce their evidence on 25.4.2004, 6.9.2004, 17.9.2007, 9.10.2007, 3.11.2007
and lastly on 10.12.2007, therefore, the suit was dismissed for want of prosecution
on 10.12.2007, against which, on 1.11.2008 the plaintiffs filed an application under
Order 9 Rule 4 of C.P.C. along with Section 5 of the Limitation Act before the
Second Civil Judge Class-II, Naogaon which was registered as Misc. Case No.
8/12, mentioning therein that on 20.10.2007 the original plaintiff Kharsiya @
Gulabrani suffered a fracture, therefore, she could not appear in the Court on the
date so fixed for recording her evidence and even she could not contact her
counsel, therefore, she could not file the application within time. However, on
31.10.2008 she came in the contact of her counsel and then only she came to know
that her suit has already been dismissed for want of prosecution on 10.12.2007.
However, by the order dated 24.9.2012 the trial Court dismissed the application
under Order 9 Rule 4 of CPC filed by the plaintiffs / respondents no. 1 and 2
holding that the plaintiffs / respondents no. 1 and 2 have no interest to continue
their suit and they also failed to produce their evidence on many occasions before
the trial Court but for one reason or the other, it kept on being adjourned. The
plaintiffs / respondents no. 1 and 2 challenging the aforesaid order of the trial
Court dated 24.9.2012 filed a MCA No.13/12 before the Additional District Judge,
Naogaon, District Chhatarpur. However, the learned Appellate Court looking to the
nature of the case and the injury suffered by the original plaintiff Kharsiya @
Gulabrani and the reasons assigned therefor and also taking into consideration the
fact that for the fault on the part of the Advocate, the litigant should not be made
sufferer, allowed the application and restored the civil suit to its original number by
the order dated 13.09.2017, which is impugned in this civil revision.
3. Learned counsel for the applicant / defendant has vehemently argued before
this Court inter-alia contending that the order passed by the learned Appellate court
is against the well reasoned findings of the learned trial Court. Learned Appellate
court has failed to consider that on so many occasions the case was fixed for
recording of plaintiffs’ evidence and also issued clear instructions for
their appearance on the next date of hearing. However, despite such instructions,
on the next date of hearing i.e. on 10.12.2007 neither the plaintiffs nor their counsel
appeared before the Court, hence, for want of prosecution, the suit was rightly
dismissed. Further submitted that when no evidence was led by the plaintiffs and
no one appeared on their behalf in the trial Court, the Court had no option but to
dismiss the suit. It is further submitted that even otherwise there was no reason to
condone the absence of plaintiffs. Further submitted that in such facts and
circumstances of the case when the plaintiffs / respondents No.1 and 2 have
deliberately chosen not to lead evidence, it cannot be said that the learned Judge of
the trial Court was in anyway wrong in dismissing the suit.
4. Learned counsel for the applicant has also relied upon the judgments rendered
by this court in the case of Bhagchand Yadav @ Girdharilal Yadav Vs. State
of M.P. and others, 2013 (3) MPHT 172, Anokhilal S/o. Rajmal Vs. Bheru
singh S/o. Parwat Singh, 2003 (1) MPACJ 42 and Rama Shankar and
others Vs. Balakdas, 2013 (4) MPLJ 167 and prayed that the impugned order
being contrary to law and facts on record be set aside.
5. Learned counsel for the plaintiffs / respondents No.1 and 2 have opposed
the prayer and have submitted that the applicant /defendant has no right to
challenge the order of restoration dated dated 13.09.2017 as when the application
under Order 9 Rule 4 of C.P.C. was filed by the plaintiffs on 1.11.2008 and
although a reply was filed by the applicant / defendant but in support of his reply,
no affidavit was filed which fact has also been observed by the learned Appellate
Court in para 13 of the impugned order wherein the Court has observed that
though the applicant Hari Sahu (DW-1) in his evidence opposed the contentions
but he has not filed any affidavit. Learned counsel for the plaintiffs / respondents
No.1 and 2 have submitted that on the date when the suit of the plaintiff was
dismissed i.e. on 10.12.2007 the original plaintiff Kharsiya @ Gulabrani could not
mark her presence on account of the fracture suffered by her on 20.10.2007 nor
she contact or inform her counsel. Thus, the absence of the plaintiffs was based
on bona fide reason. It is further submitted that the plaintiffs / respondents no. 1
and 2 filed a civil suit for declaration of title, permanent injunction and for
restoration of possession over the suit property and, therefore, there was no
reason for the plaintiffs not to appear before the trial Court as no purpose of the
plaintiffs could be served by not appearing in the trial Court. Thus, it is submitted
that no illegality has been committed by the learned Appellate court in allowing the
application under Order 9 Rule 4 of C.P.C.
6. Heard learned counsel for the parties and perused the orders passed by the
learned Appellate Court as well as the trial Court. On perusal of the order of the
trial Court, this Court finds that there is no whisper regarding giving any last
opportunity to the plaintiffs to lead their evidence. The suit has been dismissed
only on the ground that on the date when the matter was fixed for the
plaintiff’s evidence the plaintiffs and their counsel failed to mark their
appearance in the civil Court. The restoration of the same was done vide the
impugned order dated 13.09.2017. From the impugned order, this Court finds that
the learned Judge of the Appellate Court has given due weightage to the application
and the affidavit filed by the plaintiffs to condone their absence on the date when
the suit was dismissed and also the documents / affidavit submitted with regard to
the ailment of the original plaintiff Kharsiya @ Gulabrani.
7. On close scrutiny of the impugned order, this Court does not find any reason
to unsettle the finding recorded by the Appellate Court as the delay has been
condoned by giving due consideration to the affidavit filed along with the
application including the reasons assigned by the plaintiffs. So far as the
judgments cited by the learned counsel for the applicant are concerned, the same
are distinguishable on the facts and circumstances of the present case.
8. In view of the aforesaid discussion, this Court is of the considered opinion
that no illegality or jurisdictional error has been committed by the learned Judge of
the Appellate Court in allowing the MCA by the impugned order dated 13.9.2017.
In the circumstances, the civil revision being devoid of merit is hereby dismissed.
Learned Trial Court is directed to restore the civil suit to its original number i.e. old
no.10A/02 (new civil suit no.307-A/08) and thereafter, proceed with the matter in
accordance with law.
9. With the aforesaid, the civil revision stands dismissed.
(ARUN KUMAR SHARMA)
JUDGE
JP
JITENDRA KUMAR PAROUHA
2022.04.12 17:17:44 +05'30'
