Madhya Pradesh High Court
Ramsingh vs Vinod Kumar on 21 August, 2023
Author: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 21 st OF AUGUST, 2023
MISC. PETITION No. 3207 of 2021
BETWEEN:-
RAMSINGH S/O KALUSINGH RAJPUT, AGED ABOUT 60
YE A R S , OCCUPATION: AGRICULTURE VILL-TALAV
PIPLIYA TEH. MALHARGARH DISTRICT MANDSAUR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI POURUSH RANKA - ADVOCATE)
AND
VINOD KUMAR S/O LAXMINARAYAN JI SONI, AGED
ABOUT 45 YEARS, OCCUPATION: BUSINESS VILL-
NARAYANGARH TEH. MALHARGARH (MADHYA
PRADESH)
.....RESPONDENT
T h is petition coming on for orders this day, t h e cou rt passed the
following:
ORDER
The present petition is filed being aggrieved from the rejection of an
application under Order IX Rule 13 of CPC for setting aside ex-parte judgment
and decree passed in Civil Suit No. 06B/2007 dated 20/4/2007 by the learned
Civil Judge Class-I, Narayangarh, District Mandsaur which was affirmed by the
Principal District Judge, Mandsaur vide order dated 24/7/2021 passed in MCA
No.104/2019.
2. Brief facts of the case are that the respondent/plaintiff has filed a B-
class suit before the Civil Judge, Class - I, Mandsaur for recovery on the basis
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 23-08-2023
17:46:16
of promissory note allegedly issued by the petitioner/defendant. The suit was
registered as Case No. 48B/5 before IIIrd Civil Judge, Class I, Mandsaur. On
02/03/2007 the said suit was ordered to be transferred to a new place
Narayangarh where camp Court was directed to be started and accordingly by
order-sheet dated 3/3/2007 the said suit was transferred and next date of hearing
was fixed as 13/3/2007 i.e. Annexure P-4. The petitioner was not aware about
the transfer of the said suit. The trial Court also registered the said suit afresh as
6-B/07 in its B-class register and after noting that the defendant/petitioner is not
present and also the fact that the suit is transferred from a different Court, the
Court directed for fresh issuance of notice to the petitioner/defendant to enable
him to appear before the Trial Court to put his defense in the said suit. The
copy of the said proceedings is Annexure P-4. Thereafter, Civil Judge, posted
the case on 18/4/2007 and without considering the previous order-sheet of
issuing notice recorded the defendant/petitioner to be exparte and heard the final
argument and posted the case for judgment on 20/4/2007. On 20/4/2007, the
trial Court passed the judgment i.e. Annexure P-3. Thereafter, on 26/11/2010
when another case bearing Case No. 4B/2005/07 was listed before the different
Court, the petitioner and the respondent met in the Court and initiated talk for
amicable settlement of the pending matter and at that time respondent informed
the petitioner that there is one more exparte decree passed against the petitioner
in which also the petitioner is required to pay amount to the respondent.
Thereafter, petitioner immediately taken down the details of the suit from the
respondent and has immediately filed a copy of application on same date for
obtaining the certified copy of ex-parte judgment and decree and on
31/12/2010, the copying section attached to District Court has provided the
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 23-08-2023
17:46:16
certified copy to the petitioner and immediately petitioner filed an application
under Order IX Rule 13 of CPC before Civil Judge, Class I, Mandsaur i.e.
Annexure P-5.
3. The learned Civil Judge without considering the ground raised by the
petitioner dismissed the application summarily in an arbitrary manner vide order
dated 31/7/2019 i.e Annexure P-2. Thereafter, the petitioner has preferred a
Miscellaneous Appeal against the said order before Principal District Judge, but
the said appeal also met the same fate and the order passed by the Civil Judge
has been affirmed by the Principal District Judge vide order dated 24/7/2021 i.e
Annexure P-1.
4. Being aggrieved by such order, the petitioner has submitted this
petition on the ground that impugned order is perversely illegal and against the
settled principle of law and deserves to be set aside. He submitted that the Trial
Court has committed an error of law and fact by not considering the ground
raised by the petitioner in correct perspective and has failed to appreciate the
sanctity of the Court proceeding as no deviation without assigning any reasons
taken from the previous proceeding of the Court.
5. He further submitted that the matter has been transferred to a different
Court located at a different place and also the case number of the Civil Suit has
also changed and the suit was ordered to be registered afresh in the civil suit
register and also in the year 2007 the E-Courts website was also not functional
and Trial Court itself vide order dated 13/3/2007 directed for issuance of notice
to the petitioner but in reality no notice was issued by the Trial Court and
immediately on the next date the Court proceeded ex-parte and passed the
judgment. Therefore, the petitioner prays for setting aside the judgment.
6. None present on behalf of respondent after service of notice.
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 23-08-2023
17:46:16
7. After hearing the learned counsel for the petitioner and upon perusal
of the record and order of the Trial Court dated 3/3/2007, it was found that the
suit was ordered to be transferred to a new place Narayangarh where camp
Court was directed to be started and the date given to both the parties was
13/3/2007. On 03/3/2007 defendant/petitioner was not present before the Court
and attendance of both the parties through counsel was mentioned in the order-
sheet, but signature of none of the counsel was found on order-sheet dated
03/3/2007.
8. On perusal of the order sheet of the Trial Court recorded on date
13/3/2007, the trial Court mentioned defendant/petitioner as absent and ordered
that this file was received on transfer so issued notice to defendant and the case
was fixed for hearing on 18/4/2007. Upon perusal of the order-sheet dated
18/4/2007, it was found that notice was not issued to the defendant/petitioner
and the trial Court proceeded ex-parte against the defendant. The Trial Court
has not obeyed its own order. It was true that firstly, the case was pending
before the district Mandsaur and then after opening of camp Court at
Narayangarh, the suit was transferred and on the date fixed for hearing at the
camp Court, the petitioner/defendant was not present before the Trial Court and
the trial Court vide order dated 13/3/2007 directed to issue fresh notice to the
defendant/petitioner since the case was received on transfer, but in reality, no
notice was issued despite the order of the Trial Court and on the next date the
trial Court proceeded ex-parte against the petitioner. Upon perusal of the Court
order-sheets, it was found that Courts below had committed error in omitting
the order-sheet dated 13/3/2007. So upon perusal of the Trial Court record, in
the considered opinion of this Court, the order passed by the Courts below are
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 23-08-2023
17:46:16
not correct in the eyes of law and needs for interference.
9. Accordingly, the present petition is allowed. The order passed by the
Principal District Judge, Mandsaur in MCA No.104/2019 on 24/7/2021 and
order passed by the Trial Court in MJC No.5/2011 dated 31/7/2019 are set
aside. It is directed that the Trial Court shall proceed the Civil Suit Case
No.6B/07 bi-parte. The petitioner is directed to appear before the Trial Court on
25/9/2023. Trial Court decide the case within six months. The Registry of this
Court is directed to send the record of the trial Court back before the next date.
10. With the aforesaid, the present petition stands disposed off.
(HIRDESH)
JUDGE
Pramod
Signature Not Verified
Signed by: PRAMOD
KUSHWAHA
Signing time: 23-08-2023
17:46:16
