Madhya Pradesh High Court
Rajendra Prasad vs Shobhnath on 2 May, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 2 nd OF MAY, 2023
MISC. APPEAL No. 4779 of 2019
BETWEEN:-
RAJENDRA PRASAD S/O RAM PRATAP PATEL, AGED
ABOUT 63 YEARS, OCCUPATION: SERVICE SAKIN
AAKHETPUR THANA AND TEH. BEOHARI, DISTT.
SHAHDOL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI NILESH KOTECHA - ADVOCATE)
AND
1. SHOBHNATH S/O SANTA NAMDEO, AGED ABOUT
61 YEARS, OCCUPATION: SERVICE SAK8IN
AAKHETPUR THANA TEH. BEOHARI, DISTT.
SHAHDOL (MADHYA PRADESH)
2. RAMESH S/O RAMCHARAN PATEL, AGED ABOUT
30 YEARS, OCCUPATION: AGRICULTURIST SAKIN
AAKHETPUR THANA AND TAHSIL BEOHARI,
DISTT. SHAHDOL (MADHYA PRADESH)
3. STATE OF MADHYA PRADESH THR. COLLECTOR,
SHAHDOL, DISTT-SHAHDOL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI YADVENDRA DWIVEDI - ADVOCATE FOR RESPONDENTS NO.1
AND 2)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This miscellaneous appeal is filed by the defendant under Order 43 Rule
Signature Not Verified
1(t) of the Code of Civil Procedure, 1908 being of order dated 8/7/2019 passed
SAN
Digitally signed by TULSA SINGH
Date: 2023.05.04 19:57:17 IST
MJC No.04/2019 by learned Additional District Judge, Beohari, Distt. Shahdol
on the ground that learned Additional District Judge, Beohari has arbitrarily
rejected an application for restoration of Civil Appeal No.38A/2006 which was
dismissed on 08/02/2007 in absence of payment of process fee. Then he had
moved an application for restoration when Miscellaneous Civil Case was
registered as 15A/2008 for restoration. On 22/2/2011 for sufficient reasons,
counsel for the appellant could not appear when the case was fixed for calling
of the original record and in absence of intimation received by the appellant,
Miscellaneous Civil Case No.15A/2008 was dismissed whereas there was no
fault of the counsel. Appellant gathered knowledge of the order dated
22/2/2011 on 11/4/2011 when he had filed an application for taking certified
copy of order dated 22/2/2011 which was received by him on 16/6/2011 and
thereafter a prayer was made to restore the case on its original number.
It is submitted that since appellant had purchased the disputed land from
Tersi and Ramesh by unregistered sale deed for consideration of Rs.80/- and
possession was given to the appellant on 04/04/1978 i.e. the date of purchase
but same land was sold by Tersi and Ramesh to one Shobhnath by registered
sale deed without giving possession to said Shobhnath as appellant had the
possession over the land. On 25/1/2007 in Civil Suit No.38A/2006 parties were
present before the Presiding Officer, however, Presiding Officer was on leave
and case was listed for orders on 08/02/2007. Thus, order of dismissal of the
suit on 08/02/2007 was without jurisdiction since on the date of hearing i.e. on
25/01/2007 Presiding Officer was on leave and Reader of the Court had fixed
the date as 08/02/2007.
Reliance is placed on the judgment of Gwalior Bench of this High Court
Signature Not Verified
SAN
in the case of Sushila Bai W/o Ram Nihore Patel Vs. Ram Nihore
Digitally signed by TULSA SINGH
Date: 2023.05.04 19:57:17 IST
Jagatdhari Prasad Patel, 1991 MPLJ 329 wherein it is held that under
Order 9 Rule 6 and 13 of CPC if Presiding Judge was on leave and Court
Reader consequently adjourning the case, then date on which Court Reader
adjourned the matter could not be deemed to be a date of hearing. On the next
date, having been fixed by the Court Reader in absence of Presiding Officer,
parties absence on the date did not give Court jurisdiction to proceed ex parte
and, accordingly, ex party proceedings were set aside.
Reliance is also placed on the judgment of M.P. High Court in
Daulatram Vs. Ishwari Prasad, 1992 (1) MPJR S.N.28. Reliance is also
placed on the judgment delivered in the case of Jaipur Udyog Ltd. Vs. M/s.
Haji Ali Mohd., 1993 (II) MPWN S.N.84 in support of his contention that
the appeal could not have been dismissed on the date fixed for proper orders.
Shri Yadvendra Dwivedi, learned counsel for respondents No.1 and 2,
opposes the prayer for restoration.
After hearing learned counsel for the parties and going through the
record, it is evident that petitioner had filed MJC No.04/2019 seeking restoration
of MJC No.15/2008 which was decided on 22/02/2011. Learned Court below
has recorded a finding that there was delay of six months in filing the
application. It has also recorded a finding that on 13/01/2011 when MJC
No15/2008 was taken up, then counsel for the appellant was present, original
record was already received and case was listed for arguments on 22/2/2011
when appellant remained absent and no counsel appeared for him when the
matter was dismissed for want of prosecution. It has also recorded a factual
aspect that in the application for restoration it has been wrongly mentioned that
Signature Not Verified
SAN
the case was fixed for summoning of the record whereas record was already
Digitally signed by TULSA SINGH
received on 13/1/2011 and this fact was known to the counsel Shri Ram Shakti
Date: 2023.05.04 19:57:17 IST
Patel and Shri Ramkesh Patel whose presence is marked in the order sheet of
the concerned date.
Thus, there was no need for either paying for process fee nor process fee
for calling the original record, therefore, recording a factual finding that
sufficient cause had not been shown for delay and non-appearance, learned
Court below held that though application for restoration was filed after four
months and, therefore, condoned the delay but held that application is not bona
fide inasmuch as case was not dismissed for want of payment of process fee
on 22/2/2011 but, for absence of the counsel, therefore, submissions made by
appellant's counsel placing reliance on the judgments in the cases of Sushila
Bai, Daulatram and Jaipur Udyog Ltd.(supra) will have no relevance
because these judgments may be applicable when MJC No.15A/2008 could
have been restored, then while considering the merits of MAJ No.15A/2008,
these judgments could have been taken into consideration. But, since MJC
No.15/2008 was dismissed not for non-payment of process fee but for absence
of the counsel and it is evident from the order sheets as recorded by learned
Additional District Judge, Beohari that on 13/1/2011 matter was not fixed under
the head of proper order but was fixed by the Judge himself for the next date of
22/2/2011 and that too in presence of the counsel. Thus, these judgments have
no application to the facts of the case. Hence, impugned order cannot be
faulted with. Even otherwise under Order 9 Rule 4, CPC appellant is not
remediless.
Accordingly, this miscellaneous appeal fails and is hereby dismissed.
Signature Not Verified
SAN
Digitally signed by TULSA SINGH
Date: 2023.05.04 19:57:17 IST
(VIVEK AGARWAL)
JUDGE
ts
Signature Not Verified
SAN
Digitally signed by TULSA SINGH
Date: 2023.05.04 19:57:17 IST
