Madhya Pradesh High Court
Sanni Gabda vs Jayendra Abad on 10 November, 2022
Author: Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJEEV KUMAR SHRIVASTAVA
ON THE 10th OF NOVEMBER, 2022
MISCELLANEOUS PETITION No. 2948 of 2022
BETWEEN:-
SANNI GABDA S/O LATE SHRI OMPRAKASH,
AGED 40 YEARS, OCCUPATION: DUKANDARI,
R/O ROXY TALKIES, LASHKAR, DISTRICT
GWALIOR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI B.D. JAIN - ADVOCATE )
AND
1. JAYENDRA AVAD S/O LATE SARDAR SHRI
SAMBHAJI RAO AVAD, R/O AVAD SAHAB KA
BADA, ROXY TALKIES ROAD, LASHKAR,
GWALIOR (MADHYA PRADESH)
2. SHOBHA GABRA (SAHI NAAM NAHI) R/O SHRI
SAHAB KE BADE KE SAMNE GALI, LASHKAR,
GWALIOR (MADHYA PRADESH)
3. KOMAL BALRECHA W/O SHRI DEEPAK
BALRECHA R/O VEER SAWARKAR KHATI TAIK,
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DEEPAK KHOT - ADVOCATE FOR RESPONDENT NO.1)
Th is petition coming on for hearing this day, th e Court passed the
following:
ORDER
Present petition under Article 227 of the Constitution of India has been
filed by the petitioner challenging the impugned order 01.07.2022 passed by
Fifteenth District Judge, District Gwalior in RCA No.05/2018 by which, the
application filed by the petitioner under Order 6 Rule 17 of CPC has been
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 10-11-2022
06:11:05 PM
rejected.
The brief facts of the case are that plaintiff/ respondent No.1 had filed a
Civil Suit for eviction against present petitioner and respondents No.2 & 3 who
are tenants, which was decreed in favour of the plaintiff vide judgment dated
22/11/2017 passed in Civil Suit No.24A/2015 by Eighth Civil Judge, Class I,
Gwalior. Against which, petitioner preferred an appeal under Section 96 of
CPC, wherein by impugned order dated 01/07/2022, First Appellate Court had
rejected the application filed by the petitioner under Order 6 Rule 17 CPC.
Hence, this petition.
It is submitted by learned counsel for the petitioner that the Court below
has erred in passing the impugned order dated 01/07/2022, whereby application
preferred by the petitioner under Order 6 Rule 17 CPC has been rejected, as it
is mandatory for the First Appellate Court to decide the aforesaid application
while considering the appeal on merits but the Court has passed an independent
order. Therefore, the impugned order is without jurisdiction and bad in law
which deserves to be set aside. In support of his arguments learned counsel for
the petitioner has relied upon the orders passed in the case of Harbilas and
others Vs. Kokabai and others [1982 JLJ 67] and Ramesh Singh and
others Vs. Vaijanti Bai and others [2003 (3) MPHT 497]. Hence, learned
counsel for the petitioner prayed to set aside the impugned order by allowing
this petition.
Per contra, learned counsel for the respondent has vehemently opposed
the petition and submitted that the petitioner who is the tenant has come with
mala fide intention and not with clean hands. From the impugned order, it is
clear that earlier an application under Order 41 Rule 22 CPC was preferred by
the petitioner for similar relief which was also dismissed by the First Appellate
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 10-11-2022
06:11:05 PM
Court considering the merits of the application and no appeal was preferred
thereagainst. It is further submitted that the First Appellate Court has not
decided the application filed under Order 6 Rule 17 CPC on merits, rather only
has observed that earlier application filed for similar relief was rejected.
Therefore, the Court below has rightly rejected the application under Order 6
Rule 17 CPC and no interference by this Court in the impugned order is
warranted. Hence, prayed to dismiss the instant petition.
Heard learned counsel for the parties and perused the documents
available on record.
The First Appellate Court while passing the impugned order has
observed as under:-
vihykFkhZ ds }kjk vkns'k 6 fu;e 17 lgifBr /kkjk 151
lhihlh dk Hkh vkosnu is'k fd;k gS vkSj vkosnu ds vuqlkj viuh vihy
esa la'kks/ku djuk pkgrk gSA vihykFkhZ ds }kjk iwoZ esa Hkh blh vk'k; dk
vkns'k 41 fu;e 22 lhihlh dk vkosnu izLrqr fd;k Fkk vkSj ogh vkosnu
esa izko/kku dks ifjofrZr djrs gq, ;g vkosnu fn;k x;k gSA tgka rd
vkosnu esa vU; U;k;ky;ksa ds }kjk izR;FkhZ dz-1 ds }kjk izLrqr okn dks
fujLr fd;k x;k gS vkSj [email protected];FkhZ dz-1 dh oknxzLr nqdku esa
ln~Hkkfod vko';drk gksuk ugha ik;k x;k] ml vk/kkj ij bl izdj.k esa
vius vfHkopuksa dks la'kksf/kr djuk pkg jgk gS] ysfdu izLrkfor la'kks/ku
esa ftu izdj.kksa dk mYys[k fd;k x;k gS] mudh ifjfLFkfr;ka i`Fkd gks
ldrh gSaA vihykFkhZ ds }kjk iwoZ esa Hkh blh vk'k; dk vkosnu izLrqr
fd;k x;k Fkk] ftls bl U;k;ky; ds }kjk gh vLohdkj dj fn;k x;k gS]
rc ,slh fLFkfr esa dksbZ izko/kku cnydj vkosnu izLrqr fd;s tkus ls
ifjfLFkfr;ka ifjofrZr ugha gksrhA ,slh n'kk esa izLrkfor la'kks/ku dk izLrqr
vkosnu mfpr u gksus ls vLohdkj fd;k tkrk gSA
On perusal of the impugned order as well as documents available on
record, it appears that the petitioner is trying to linger on the appeal with mala
fide intention by filing similar applications again and again before the First
Appellate Court. Therefore, the First Appellate Court has rightly rejected the
application filed under Order 6 Rule 17 CPC by observing that earlier an
application which was preferred under Order 41 Rule 22 CPC by the petitioner
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 10-11-2022
06:11:05 PM
seeking similar relief was also dismissed. Hence, no interference in the
impugned order is warranted.
Accordingly, this petition stands dismissed being devoid of merits.
(RAJEEV KUMAR SHRIVASTAVA)
JUDGE
Shubhankar
Signature Not Verified
Signed by: SHUBHANKAR
MISHRA
Signing time: 10-11-2022
06:11:05 PM
