Mohammad Hussain vs Firm Kale Khan Mohd. Haneef Bidi ...
2023 Latest Caselaw 11340 MP

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                  ON THE 20 th OF JULY, 2023
                                                MISC. APPEAL No. 852 of 2014

                           BETWEEN:-
                           MOHAMMAD HUSSAIN S/O MOHD. JAAN, AGED ABOUT
                           69 YEARS, OCCUPATION: PROPRIETOR - MODERN
                           STORE, SHOP NO.10, MOGALPURA KHURJA (U.P.)
                           H.NO.144, MOHALLA PANJABIYAN KHURJA, DISTRICT
                           BULANDSHAHAR (UTTAR PRADESH)

                                                                                           .....APPELLANT
                           (BY SHRI MOHAMMAD AADIL USMANI - ADVOCATE )

                           AND
                           FIRM   KALE   KHAN     MOHD.    HANEEF BIDI
                           MANUFACTURERS     MAKRONIA (SAGAR) THROUGH
                           MOHD. WASEEM S/O MOHD. HANEEF MANAGING
                           PARTNER SHRI A.S. SIDDIQUI S/O MUNEER KHAN,
                           GENERAL MANAGER AND ATTORNEY HOLDER,
                           GOPALGANJ, TEHSIL & DISTRICT SAGAR (MADHYA
                           PRADESH)

                                                                                         .....RESPONDENT
                           (NONE )
                                 Th is appeal coming on for hearing this day, t h e court passed the

                           following:
                                                              ORDER

This miscellaneous appeal is filed by the defendant before the Trial Court under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 being aggrieved of order dated 20.03.2014 passed by learned First Additional District Judge, Sagar in MJC No.20/2012 whereby learned First Additional District Judge has refused to set aside the ex parte judgment and decree dated 31.10.2011.

2. Shri Usmani, learned counsel for appellant submits that there is defect in Signature Not Verified Signed by: DINESH VERMA Signing time: 20-07-2023 19:19:12

the proceeding. On 26.04.2011 in wait of the service of notice on the defendant, case was fixed on 5.5.2011. There is a mention of the fact that notice was received back unserved. Then it is mentioned that Presiding Officer was on leave and then case was fixed on 11.05.2011. It is submitted that on 11.05.2011 case was in proper order, therefore no ex parte proceedings could have been drawn by the Presiding Officer of the Court on the basis of some postal endorsement and without taking evidence of said postal employee. This important aspect has been overlooked by the learned Court below.

3. It is pointed out that neither the order sheet dated 05.05.2011 contains any signature nor seal of the Presiding Officer, which reveals that the order

sheet was written by the concerned Court clerk. Taking these facts into consideration, it is submitted that an order in which ex parte proceedings were drawn in a cryptic manner cannot be sustained in the eyes of law. It is further submitted that after appellant having been proceeded ex parte, plaintiff had moved an application under Order 6 Rule 17 of CPC and that was allowed behind the back of the appellant on 03.08.2011 without issuing any notice to the appellant. It is submitted that a Co-ordinate Bench of this Court in M.A. No.571 of 2015 (Hari Shankar Patel Vs. Ashutosh Patel) decided on 03.02.2023 has noted that if an application was moved under Order 6 Rule 17 of CPC then that could not have been allowed by the Trial Court without taking care to issue fresh summons in the suit to the defendants, which was necessary. In the present case, since there are two lacunae, namely, no fresh summons were issued to the defendant after filing of an application under Order 6 Rule 17 of CPC and; secondly, that the ex parte proceedings were drawn when the case was technically fixed for proper order, impugned order cannot be sustained. Therefore, impugned order is set aside. The application under Signature Not Verified Signed by: DINESH VERMA Signing time: 20-07-2023 19:19:12

Order 9 Rule 13 of CPC is allowed.

4. Appellant is directed to appear before the Trial Court on 17th August, 2023 and, in the meanwhile, the Registry shall transmit the record to the Trial Court and then Trial Court after issuing notice to the plaintiff shall proceed afresh from the stage where the case was left.

5. In above terms, this miscellaneous appeal stands allowed.

(VIVEK AGARWAL) JUDGE DV

Signature Not Verified Signed by: DINESH VERMA Signing time: 20-07-2023 19:19:12