Madhya Pradesh High Court
Daulat Ram vs Kala Bai on 6 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 6 th OF DECEMBER, 2023
WRIT PETITION No. 7360 of 2007
BETWEEN:-
DAULAT RAM S/O HAZARILAL, AGED ABOUT 70 YEARS,
R / O VILLAGE KADHYA, TAH. and DISTT.RAISEN
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI ABHISHEK SINGH - ADVOCATE )
AND
1. KALA BAI W/O DIWAN SINGH R/O VILLAGE-
KADHAYA TAH. AND DISTT. RAISEN (MADHYA
PRADESH)
2. MOHAN BAI W/O GUAL SINGH R/O SARVA
DHARMA COLONY, KOLAR ROAD BHOPAL
(MADHYA PRADESH)
3. SATISH KUMAR R/O SARVA DHARMA COLONY
KOLAR ROAD BHOPAL (MADHYA PRADESH)
4. THE STATE OF MADHYA PRADESH THROUGH
THE COLLECTOR, DISTT. RAISEN (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI PUNEET SHROTI - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.4/STATE AND NONE FOR OTHER RESPONDENTS, THOUGH SERVED.
)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Present petition has been filed by petitioner/plaintiff challenging order
dated 17/02/2007 passed by appellate Court, whereby appellate court has
confirmed the order dated 01/11/2004 passed by trial Court, wherein, trial court
rejected the application filed by petitioner/plaintiff under Order 9 Rule 9 of CPC
for restoration of original suit/MJC.
2. Brief facts of that case that can be gathered from the pleadings are that
a civil suit was filed by present petitioner in the year 1992. The said suit was
dismissed under Order 9 Rule 8 of CPC and the petitioner has moved an
application for restoration of said suit under Order 9 Rule 9 of CPC. Said
application for restoration of suit was registered in MJC and on 09/02/2001
same got dismissed in absence of appellant as the counsel pleaded no
instruction. Thereafter, the petitioner filed fresh application under Order 9 Rule
9 of CPC for restoration of earlier application filed under Order 9 Rule 9 of
CPC, which was supported by the affidavit of petitioner. However, trial Court
rejected the said application by Annexure P/4 and the said order was later on
affirmed by learned appellate court vide Annexure P/5.
3. It is apparent from the record, that earlier MJC was dismissed by trial
Court in default of presence of counsel for applicant. For the last some dates
matter was proceeded for payment of process fee for service of the
respondents/defendants therein through paper publication. Thereafter on
09/02/2001, counsel pleaded no instruction.
4. Upon perusal of impugned order sheets, which is available at page
No. 28 of present petition, it seems that the applicant was represented through
counsel and there was no requirement for presence of petitioner inspite of that
the court ordered for dismissal of MJC in his absence, when the counsel
pleaded no instruction.
5. Learned counsel for petitioner has relied upon the judgments of
Supreme Court in the cases of Tahil Ram Issardas Sadargani and others
Vs. Ramchand Issardas Sadarangani and anothers, AIR 1993 SC 1182
and Malkiat Singh and Another Vs. Joginder Singh and others, AIR 1998
SC 258 respectively, wherein it has been held that upon counsel pleading no
instructions, the interest of justice demands that notice for date of hearing
should have been sent to the party. Usually, in such circumstances, parties are
not considered to be at fault and they should not suffer on account of pleading
no instruction by counsel.
6. From the perusal of record, it appears that the application under Order
9 Rule 9 of CPC for restoration of earlier MJC was filed with a delay of almost
5 months. Application for restoration of earlier MJC is on record, which
mentions the reason that the petitioner was very ill, he was suffering from
paralysis and he had a injury on his foot, which is still not fully cured and said
application was supported by affidavit of the petitioner himself.
7. Trial Court has rejected the said application on the ground that if the
petitioner was ill, then he could have sent some other person to his counsel for
getting the application for restoration filed and he has also not explained day to
day delay, hence, he is shown to be a irresponsible litigant.
8. It is important to note here that the trial Court while rejecting
application for restoration of earlier MJC has not gone to the aspect that since
earlier MJC was dismissed on account of the counsel pleading no instruction,
therefore, it could not be presumed that the petitioner had knowledge of
rejection of earlier MJC from the very first date. It was a case for restoration
after counsel pleading no instructions, therefore, some leniency should ought to
have been shown by the trial Court.
9. Appellate court has duly adverted to the aspect that the matter
required leniency to be shown but has upheld the order of trial Court only on
the ground the affidavit filed by petitioner is a skeletal affidavit and no detailed
affidavit has been filed.
10. The applicant appears to be an old person aged about 70 years at
the time of filing of application for restoration of earlier MJC as shown in cause
title of the petition and of the court below. He is a village person and member of
SC category, who resides in a village far away from the place, where the court
is located.
11. All these facts have been adverted to by the courts' below but the
courts' below have failed to appreciate and consider the same.
12. In view of aforesaid, in my opinion, the courts' below have
committed error in passing Annexure P/4 and P/5.
13. Accordingly, present petition stands allowed and Annexure P/4 and
P/5 are hereby set aside and in consequence thereof original MJC No. 25/1995
is hereby restored to its original number. Petitioner/his legal representatives are
directed to appear before the trial Court on 05/01/2024.
Certified copy as per rules.
(VIVEK JAIN)
JUDGE
skt
