Sanjay vs Hiralal Kala Trust Badnagar Thr. ...
2022 Latest Caselaw 5342 MP

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                                       Misc. Petition No.4642/2021


        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
          HON'BLE SHRI JUSTICE ANIL VERMA

              ON THE 12th OF APRIL, 2022

             MISC. PETITION No. 4642 of 2021

  Between:-
  SANJAY S/O SHIKHARCHANDJI PATNI,
  AGED ABOUT 50 YEARS, OCCUPATION: BUSINESS,
  R/O PATNI JINING INDUSTRIES, ANJAD,
  TEHSIL AND DISTRICT BARWANI (MADHYA PRADESH)
                                          .....PETITIONER
  (BY SHRI PIYUSH SHRIVASTAVA, ADVOCATE)

  AND

1. HIRALAL KALA TRUST BADNAGAR
  THR. ITS TRUSTEES JITENDRA KUMAR,
  S/O BHAGCHANDJI KALA,
  OCCUPATION: BUSINESS,
  R/O LAKHARSERI SANT TULSI PATH,
  WARD NO. 2 BADNAGAR,
  TEH. BADNAGAR (MADHYA PRADESH)

2. HIRALAL KALA TRUST BADNAGAR
  THR. ITS TRUSTEES TEJKUMAR,
  S/O VIMALCHAND SHAH,
  AGED ABOUT 40 YEARS,
  OCCUPATION: BUSINESS,
  R/O MAHARANA PRATAP CHOWK,
  BADNAGAR HOUSE NO. 12,
  WARD NO. 8 BADNAGAR (MADHYA PRADESH)

3. HIRALAL KALA TRUST BADNAGAR
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                                      Misc. Petition No.4642/2021


  THR. ITS TRUSTEES ASHOK KUMAR,
  S/O SUNDARLALJI VED,
  OCCUPATION: BUSINESS,
  R/O SHIVAJI PATH BADNAGAR (MADHYA PRADESH)

4. HIRALAL KALA TRUST BADNAGAR
  THR. ITS TRUSTEES PRADEEP KUMAR,
  S/O RAJKUMAR GADIYA,
  OCCUPATION: BUSINESS,
  R/O MAHARANA PRATAP CHOWK,
  BADNAGAR HOUSE NO. 12 WARD NO. 8,
  BADNAGAR (MADHYA PRADESH)

5. HIRALAL KALA TRUST BADNAGAR
  THR. ITS TRUSTEES PAVANKUMAR,
  S/O MOTILALJI KALA,
  AGED ABOUT 55 YEARS,
  OCCUPATION: BUSINESS,
  R/O 11 MAHARANA PRATAP CHOWK,
  BADNAGAR WARD NO. 8,
  BADNAGAR (MADHYA PRADESH)

6. HIRALAL KALA TRUST BADNAGAR
  THR. ITS TRUSTEES ANIL KUMAR,
  S/O GULABCHANDJI BADJYOTIYA,
  BADNAGAR (MADHYA PRADESH)

7. HIRALAL KALA TRUST BADNAGAR
  THR. ITS TRUSTEES ASHOK KUMAR,
  S/O CHAGANLAL SHAH,
  AGED ABOUT 50 YEARS,
  R/O DHANMANDI M.G. ROAD,
  BADNAGAR (MADHYA PRADESH)

8. RAJENDRA KUMAR S/O TRILOKCHAND KALA,
  AGED ABOUT 50 YEARS,
  OCCUPATION: SERVICE,
  M.G. ROAD BADNAGAR,
  PRESENT ADDRESS:- STATE BANK OF INDORE,
  BRANCH AGAR (MALWA) (MADHYA PRADESH)
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                                         Misc. Petition No.4642/2021




9. DHANKUMAR S/O TRILOKCHAND KALA,
   AGED ABOUT 45 YEARS,
   OCCUPATION: BUSINESS,
   MAHATMA GANDHI MARG,
   SAPNA KIRANA STORES DHANMANDI,
   BADNAGAR, DISTRICT UJJAIN (MADHYA PRADESH)

10. SUDARSHAN KUMAR S/O TRILOKCHAND KALA,
   AGED ABOUT 42 YEARS,
   R/O NAYAPURA WARD NO. 7,
   UJJAIN (MADHYA PRADESH)

11. ANIL KUMAR S/O TRILOKCHANDJI KALA,
   AGED ABOUT 40 YEARS,
   OCCUPATION: BUSINESS,
   R/O VYAS COLONY, BADNAGAR,
   DISTRICT UJJAIN (MADHYA PRADESH)

12. SMT. SANTO W/O SHIKHARCHANDJI
   DECEASED THR. LRS. SOURABH,
   S/O SHIKHARCHANDJI PATNI,
   AGED ABOUT 44 YEARS,
   R/O PATNI JINING INDUSTRIES,
   ANJAD TEHSIL AND DISTRICT
   BADWANI (MADHYA PRADESH)

13. SMT. SANTO W/O SHIKHARCHANDJI
   DECEASED THR. LRS. SMT. SHAIFALI,
   W/O SOURABH TOGYA,
   D/O SHIKHARCHANDJI PATNI,
   R/O HUKAMCHAND MARG,
   OPPOSITE KANCH MANDIR,
   INDORE (MADHYA PRADESH)

14. KU. ANITA D/O TRILOKCHANDJI,
   AGED ABOUT 35 YEARS,
   R/O MAHATMA GANDHI MARG,
   DHANMANDI ROAD, BADNAGAR,
   DISTRICT UJJAIN (MADHYA PRADESH)
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                                                Misc. Petition No.4642/2021




15. STATE OF M.P.,
      THROUGH COLLECTOR,
      UJJAIN (MADHYA PRADESH)
                                                 .....RESPONDENTS
      (R. NO.1 TO 7 BY SHRI A. K. SETHI, LEARNED SENIOR COUNSEL
      WITH SHRI HARISH JOSHI, )

        This Misc. Petition coming on this day, the court passed the
following:
                            O R D E R

With the consent of the parties, matter is heard finally at motion hearing stage.

02- By this miscellaneous petition preferred under Article 227 of the Constitution of India, the petitioner / defendant has challenged the impugned order dated 18/11/2021 passed in Civil Suit No.196/17A by II Civil Judge, Senior Division, Badnagar, District Ujjain, by which ex-parte proceeding against the petitioner / defendant has been set aside and permitted to participate in the proceeding but without filing any reply / written statement. 03- The facts of the case in brief are that the respondent No.1 / plaintiff Heeralal Kala Trust has filed a civil suit for declaration, possession, mesne profit and permanent injunction against the respondents / defendants No.2 to 9. The mother of the petitioner namely Smt. Santosh was also impleaded as defendant No.6. After the death of his mother petitioners as well as his brother and sister were also impleaded in place of their mother. Notice has been

Misc. Petition No.4642/2021

served through publication in a news paper "Dainik Awantika". Due to non appearance of petitioner, he has been declared ex-parte. Thereafter, the petitioner filed an application under Order IX Rule 7 of the CPC for setting aside the ex-parte order passed against him. Vide order dated 13/11/2021, ex-parte proceeding against him was set aside but with a condition that the petitioner shall not be permitted to file any reply / written statement, therefore, petitioner has preferred this petition.

04- Learned counsel for the petitioner contended that the impugned order is wrong, illegal and not in accordance with the law. Trial Court has committed grave error of both law and facts in not permitting the petitioner to file reply / written statement. In the notice itself period of 30 days was given but prior to expiry of this period, he has been declared ex-parte. The trial Court has failed to properly applying its mind while passing the impugned order, as without pleading there will be no meaning for the petitioner to participate in the case. Hence, he prays that the impugned order be set aside and the petitioner be permitted to participate in the matter with specific permission to file reply / written statement and other relevant documents in accordance with law. 05- Per contra, learned Senior counsel for the respondents supported the impugned order and prays for dismissal of the petition.

06- Both the parties heard at length and perused the documents

Misc. Petition No.4642/2021

filed by both the parties.

07- From perusal of the record, it appears that notice has been published against the petitioner and other legal representatives of the deceased defendant Smt. Santosh. The notice has been published on 31/10/2021 and in the notice itself 30 days time was provided for appearance as well as for filing reply but prior to expiry of this period, impugned order has been passed by the trial Court. Although the trial Court has set aside the ex-parte proceeding against the petitioner but with a condition that the petitioner shall not be permitted to file any reply / written statement in the suit.

08- Hon'ble the apex Court in the case of Sumtibai and Others Vs. Paras Finance Co. Regd. Partnership Firm Beawar (Raj.) Through Mankanwar (Smt) W/o Parasmal Chordia (Dead) and Others reported in (2007) 10 SCC 82 has held that every party in a case has a right to file a written statement. 09- Co-ordinate Bench of this Court in the case of Ghisibai Vs. Bank of Baroda reported in 1983 MPWN 63 has held as under:-

"The trial Court rejected the application on the ground that the right of the deceased Ramprasad to file written statement was terminated and therefore Ghisibai cannot be allowed to file written statement. The order passed by the trial Court cannot be sustained in law. Ghisibai has a right to take such defences as are available to her in the capacity as legal representative of the deceased and she cannot be denied this right on the ground that the deceased Ramprasad's right to file written statement was terminated during his life time."

Misc. Petition No.4642/2021

10- Having regard to the fact that closure of right to file the reply / written statement will cause serious prejudice to the petitioner and without any pleading there is no meaning for the petitioner to participate in the case.

11- Keeping in view the judgment delivered in the case of Ghisibai (Supra), this Court is of the considered view that the impugned order passed by the trial Court in respect of preventing the petitioner to file any reply / written statement is not just and proper. Trial Court has committed a grave error of both law and facts in not permitting the petitioner to file reply / written statement in this matter.

12- Accordingly, this petition is allowed and the impugned order is set aside and the trial Court is directed to permit the petitioner / defendant to file reply / written statement on his behalf.

Certified copy as per rules.

(ANIL VERMA) JUDGE Tej Digitally signed by TEJPRAKASH VYAS Date: 2022.04.12 19:17:31 +05'30'