Shyambihari Agrawal vs Mandir Shri Laxminarayan Katni
2023 Latest Caselaw 10779 MP

                                                          1
                           IN    THE      HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                ON THE 13 th OF JULY, 2023
                                             CIVIL REVISION No. 193 of 2023

                          BETWEEN:-
                          1.    SHYAMBIHARI AGRAWAL S/O SHRI MOOLCHAND
                                AGRAWAL,   AGED   ABOUT     67   YEARS,
                                OCCUPATION: BUSINESS, R/O GANDHIGANJ
                                PANDEY GALI DISTRICT KATNI (MADHYA
                                PRADESH)

                          2.    SMT. GAYATRIDEVI AGRAWAL D/O LATE SHRI
                                SHARDA PRASAD     AGRAWAL,   W/O   SHRI
                                CHAMANLAL AGRAWAL, AGED ABOUT 62 YEARS,
                                OCCUPATION: HOME MAKER, R/O SOUTH
                                MILONIGANJ DISTRICT JABALPUR (MADHYA
                                PRADESH)

                                                                                     .....APPLICANTS
                          (BY SHRI UTKARSH AGRAWAL, ADVOCATE)

                          AND
                          MANDIR SHRI LAXMINARAYAN KATNI, THROUGH ITS
                          SECRETARY SHRI KAILASH CHAND CHOUDAHA S/O
                          SHRI NATHULAL CHOUDAHA, AGED ABOUT 90 YEARS,
                          OCCUPATION BUSINESS, R/O RAGHUNATHNGANJ
                          TEHSIL KATNI DISTRICT KATNI (MADHYA PRADESH)

                                                                                    .....RESPONDENT
                          (BY SHRI S.K. DUBEY, ADVOCATE)

                                This revision coming on for admission this day, th e court passed the
                          following:
                                                           ORDER

This civil revision has been preferred by the applicants- Shyambihari Agrawal and Smt. Gayatridevi Agrawal, challenging the order dated 13/01/2023 passed by 3rd Additional Judge to the Court of 1st District Judge, Katni in Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 7/17/2023 1:32:46 PM

Misc. Civil Appeal No.38/2021, affirming the order dated 19/12/2017 passed by 1st Additional Civil Judge to the Court of 1st Civil Judge Class-II, Katni in MJC No.700049/1989, whereby application under Order 9 Rule 13 CPC filed for setting aside the ex-parte judgment and decree of eviction dated 21/09/1989 passed under Section 12(1)(a) of the Madhya Pradesh Accommodation Control Act, 1961, (in short 'the Act') has been dismissed.

2. Learned counsel for the applicants submits that after passing of the ex- parte judgment and decree on 21/09/1989 against original tenant Lalji Prasad @ Bhailal, his brothers Moolchandra and Sharda Prasad as well as the applicants Shyambihari S/o Moolchandra and Smt. Gayatri Devi D/o Sharda Prasad were

substituted and although summons of plaint were served on them, but their duly engaged counsel neither filed vakalatnama on their behalf nor he appeared before the Court, therefore, there was sufficient reason not to appear before the Court below. He submits that the duly engaged counsel also did not inform to the applicants about his non-appearance before the Court. He submits that by adducing evidence on the application under Order 9 Rule 13 CPC, the applicants have proved this fact but the learned Courts below have not appreciated the evidence adduced by the applicants in its real perspective. In support of his submissions, he placed reliance on the decisions of the Supreme Court in the case of Balwant Singh (Dead) Vs. Jagdish Singh and others (2010) 8 SCC 685; Seema Gupta Vs. Manoj Kumar 2020 SCC OnLine Utt 724; Sudhir Ranjan Patra (Dead) thr. LRs. & another Vs. Himansu Sekhar Srichandan & Others AIR 2022 SC 2881 and a coordinate Bench decision of this Court in the case of Smt. Sheelabai Nai & others Vs. Kalua Nai (Dead) & others passed in Civil Revision No.105/2022 on 21/09/2022.

3. Heard learned counsel for the applicants and perused the record. Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 7/17/2023 1:32:46 PM

4. From perusal of the order dated 19/12/2017 passed in MJC, it is clear that the application under Order 9 Rule 13 CPC was filed by four persons namely Shyambihari, Moolchandra, Sharda Prasad and Gayatri Devi, who are legal representatives of original tenant Lalji Prasad but for the reasons best known to them after dismissal of the application under Order 9 Rule 13 CPC, the miscellaneous appeal has been filed by two out of four legal representatives of original tenant Lalji Prasad namely Shyambihari and Gayatri Devi.

5. As has been held by a coordinate Bench of this Court in the case of Shanti (Smt.) and another Vs. Lakshman and others 2009(II) MPWN 23, all the parties before the Court below are necessary parties. In the present case, there were four defendants in the ex-parte judgment and decree, who all are legal representatives of original tenant Lalji Prasad @ Bhailal, therefore, it can very well be assumed that two legal representatives namely Moolchandra and Sharda Prasad, who are class II successors of original tenant Bhailal, have not challenged the order dated 19/12/2017, dismissing the application under Order 9 Rule 13 CPC and the present applicants who are class IV successors of the original tenant of Bhailal, only preferred miscellaneous appeal, therefore, in my considered opinion in the light of aforesaid decision in the case of Shanti (Smt.) (supra), the miscellaneous civil appeal filed before the 1st District Judge was not maintainable and similarly, the civil revision filed before this Court is also

not maintainable in absence impleadment of the class II successors of original tenant-Bhailal, namely Moolchandra and Sharda Prasad.

6. So far as, the merits of the case are concerned, learned Courts below after due appreciation of evidence available on record, have held that despite service of summons, the legal representatives of original tenant Bhailal namely

Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 7/17/2023 1:32:46 PM

Shyambihari, Moolchandra, Sharda Prasad and Gayatri Devi did not appear and in respect of proof of their contentions regarding engagement of the counsel, no vakalatnama has been filed on record and the counsel engaged has also not been examined. It has also been held that the applicants have been negligent and did not appear despite knowledge of the pending civil suit. With these findings, learned Courts below have dismissed the application under Order 9 Rule 13 CPC.

7. In the aforesaid facts and circumstances of the case, the decisions cited by the learned counsel for the applicants are not applicable to the present case.

8. As such, in my considered opinion, learned Courts below have not committed any illegality in passing the impugned orders and in dismissing the application under Order 9 Rule 13 CPC.

9. Resultantly, the civil revision fails and is hereby dismissed. However, no order as to costs.

10. Interim application(s), if any, shall stand dismissed.

(DWARKA DHISH BANSAL) JUDGE RS

Signature Not Verified Signed by: RASHMI RONALD VICTOR Signing time: 7/17/2023 1:32:46 PM