Ramakant Pathak vs Anjani Prasad
2023 Latest Caselaw 12800 MP

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                          IN    THE     HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                           ON THE 8 th OF AUGUST, 2023
                                          MISC. APPEAL No. 3730 of 2022

                         BETWEEN:-
                         RAMAKANT PATHAK S/O SHRI VINAYAK PRASAD,
                         AGED ABOUT 52 YEARS, OCCUPATION: RETRIED
                         SERVICE ( ACTUAL AGED ABOUT 65 YEARS ) R/O
                         VILLAGE KHADDA TEHSIL GUDH DISTRICT REWA
                         (M.P.) (MADHYA PRADESH)

                                                                           .....APPELLANT
                         (BY SHRI BRAHMENDRA PATHAK - ADVOCATE)

                         AND
                         1.    ANJANI PRASAD S/O BALBHADRA PRASAD, AGED
                               ABOUT 60 YEARS, R/O VILLAGE BELA TEHSIL
                               GUDH DISTRICT REWA (M.P.) (MADHYA
                               PRADESH)

                         2.    RAJENDRA PRASAD S/O ANJANI PRASAD R/O
                               VILLAGE BELA TEHSIL GUDH DISTRICT REWA
                               MP (MADHYA PRADESH)

                         3.    SANTOSH PRASAD S/O ANJANI PRASAD R/O
                               VILLAGE BELA TEHSIL GUDH DISTRICT REWA
                               (M.P.) (MADHYA PRADESH)

                         4.    SAROJ S/O ANJANI PRASAD R/O VILLAGE BELA
                               TEHSIL GUDH DISTRICT REWA MP (MADHYA
                               PRADESH)

                         5.    SHARDA PRASAD S/O VINAYAK PRASAD, AGED
                               ABOUT 57 YEARS, R/O VILLAGE KHADDA TEHSIL
                               GUDH DISTRICT REWA (M.P.) (MADHYA
                               PRADESH)

                         6.    U M A K A N T PATHAK S/O VINAYAK PRASAD
                               PATHAK, AGED ABOUT 48 YEARS, R /O VILLAGE
                               KHADDA TEHSIL GUDH DISTRICT REWA
                               (MADHYA PRADESH)
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
8/8/2023 6:53:17 PM
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                         7.    SUSHIL KUMAR PATHAK W/O VINAYAK PRASAD
                               PATHAK R/O VILLAGE KHADDA TEHSIL GUDH
                               DISTRICT REWA (M.P.) (MADHYA PRADESH)

                         8.    SARJINI DEVI W/O SHASHIKANT PATHAK R/O
                               VILLAGE KHADDA TEHSIL GUDH DISTRICT
                               REWA (M.P.) (MADHYA PRADESH)

                         9.    SATE OF M.P THROUGH COLLECTOR REWA
                               DISTRICT REWA (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                         (BY SHRI VINOD KUMAR DUBEY - ADVOCATE)

                               T h is appeal coming on for orders this day, t h e cou rt passed the
                         following:
                                                            ORDER

This appeal under Order XLIII Rule 1(T) of the Code of Civil Procedure, 1908 is filed by the appellant/plaintiff being aggrieved by the order dated 10.5.2022 passed by learned 1st Additional District Judge to the Court of 1st Additional District Judge, Rewa in MJC No.200033/2014 rejecting an application under Order XLI Rule 19 of the C.P.C.

The undisputed facts of the case are that the present appellant had filed a Civil Suit No.86A/2008 (Ramakant Pathak versus Anjani Pathak & Others) before 1st Additional Civil Judge Judge Class-I to the Court of 1st Civil Judge Class-I, Rewa and that suit was dismissed vide judgement and decree dated 17.7.2009. Against the said judgment and decree, Regular Civil Appeal No.5A/2010 (Ramakant Pathak versus Anjani Pathak & Others) was filed, which came to be dismissed for want of prosecution on 9.7.2012. Against the said order, the MJC in question was filed. Learned Additional District Judge recording a finding that on 9.7.2012 upto 4:15 PM, the counsel had not appeared and also taking note of the conduct of the appellant, who admitted that he was not appearing in the Court after fling of the appeal, rejected the Signature Not Verified Signed by: AMIT JAIN Signing time:

8/8/2023 6:53:17 PM

application.

Learned counsel for the respondents supports the impugned order. A perusal of the provisions as contained in Section XLI Rule 19 of the C.P.C reveals that a Court can restore the appeal on sufficient cause being shown and subject to cost or otherwise as it thinks fit. It is settled principle of law that no party should be allowed to suffer for the fault of their counsel.

In the present case, it has come on record that the counsel for the appellant had not appeared on the relevant date. Taking all these facts into consideration and also keeping in view the provisions as contained in Order XLI Rule 19 of the C.P.C, the impugned order dated 10.5.2022 passed by learned 1st Additional District Judge to the Court of 1st Additional District Judge, Rewa in MJC No.200033/2014 is set aside subject to payment of cost of Rs.10,000/- to be paid by the appellant/plaintiff in favour of the defendant Nos.1 to 9. Parties shall appear before the Court of Additional District Judge concerned on 28.8.2023 for which no separate notice will be required and learned Additional District Judge concerned is requested to decide the appeal within a further period of thirty days. However, it is made clear that the payment of cost will be a pre-condition for proceeding with the appeal.

In above terms, this appeal is disposed of.

Let record of the Court below, if any, be sent back.

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified Signed by: AMIT JAIN Signing time:

8/8/2023 6:53:17 PM