Madhya Pradesh High Court

Late Ashandas Wadhwani And Others vs Kanhaiyalal on 12 October, 2023

Author: Vivek Agarwal

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 12 th OF OCTOBER, 2023
MISC. APPEAL No. 2765 of 2020

BETWEEN:-
1. LATE ASHANDAS WADHWANI AND OTHERS S/O
SHRI VIRIAL DAS WADHWANI, AGED ABOUT 75
YEARS, OCCUPATION: BUSINESS R/O GHONGHAR
REWA (MADHYA PRADESH)

2. JETHANAND WADHANI (DEAD) THR. LRS. SMT.
VARSHA WADHWANI W/O LATE JETHANAND
WADHWANI, AGED ABOUT 51 YEARS,
OCCUPATION: HOUSEWIE WARD NO. 19 GOGHAR
DISTT. (MADHYA PRADESH)

3. RAJESH WADHWANI S/O LATE JETHANAND
WADHANI, AGED ABOUT 44 YEARS, OCCUPATION:
BUSINESS WARD NO. 19 GOGHAR DISTT.
(MADHYA PRADESH)

4. RAMESH WADHWANI S/O LATE JETHANAND
WADHANI, AGED ABOUT 41 YEARS, OCCUPATION:
BUSINESS CIVIL LINE DISTT. REWA (MADHYA
PRADESH)

5. ASHWANI WADHWANI S/O LATE JETHANAND
WADHANI, AGED ABOUT 34 YEARS, WARD NO. 19
GOGHAR DISTT. (MADHYA PRADESH)

6. SMT. POONAM KOTWANI W/O SHRI VIJAY
KOTWANI, AGED ABOUT 39 YEARS, OCCUPATION:
HOUSEWIFE PURSHWANI MOHALLA SINDHI
CAMP (MADHYA PRADESH)

7. SMT. MOONAM KATARIA W/O SHRI MUKESH
KATARIA, AGED ABOUT 32 YEARS, NEAR HARE
MADHAVDAS DARBAR MADHAV NAGAR
COLONY (MADHYA PRADESH)

8. SMT. DIVYA MOTWANI W/O SHRI VISHAL
MOTWANI, AGED ABOUT 21 YEARS, OM SAI
COMMUNICATION DHANPURI ROAD COLLEGE
TIRAHA BURHAR (MADHYA PRADESH)
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 13-10-2023
19:49:41
2

9. MS. YOGITA WADHWANI D/O LATE JETHANAND
WADHWANI, AGED ABOUT 17 YEARS,
OCCUPATION: MINOR THR. NATURAL GUARDIAN
BROTHER SHRI RAJESH WADHWANI WARD NO.
19 GOGHAR DISTT. (MADHYA PRADESH)

10. MS. TEENA WADHWANI D/O LATE JETHANAND
WADHWANI, AGED ABOUT 14 YEARS,
OCCUPATION: MINOR THR. NATURAL GUARDIAN
BROTHER SHRI RAJESH WADHWANI WARD NO.
19 GOGHAR DISTT. (MADHYA PRADESH)

.....APPELLANTS
(BY SHRI SANJAY AGRAWAL - SENIOR ADVOCATE ASSISTED BY SHRI
SARANSH KULSHRESHTHA - ADVOCATE)

AND
1. KANHAIYALAL S/O TEKCHAND WADHWANI,
AGED ABOUT 44 YEARS, R/O GHONGHAR
VYANKAT ROAD REWA (MADHYA PRADESH)

2. RAVI KUMAR WADHWANI S/O SHRI TEKCHAND
WADHWANI, AGED ABOUT 44 YEARS, R/O
GHONGHAR, VYANKAT ROAD REWA (MADHYA
PRADESH)

3. TULSIDAS S/O SHRI TEKCHAND WADHWANI,
AGED ABOUT 34 YEARS, R/O GHONGHAR,
VYANKAT ROAD REWA (MADHYA PRADESH)

4. SUNIL KUMAR S/O SHRI TEKCHAND WADHWANI,
AGED ABOUT 30 YEARS, R/O GHONGHAR,
VYANKAT ROAD REWA (MADHYA PRADESH)

5. PINKI WADHWANI S/O SHRI TEKCHAND
WADHWANI,, AGED ABOUT 41 YEARS, R/O
GHONGHAR, REWA (MISHRA MISHTHAN
BHANDAR) VYANKAT ROAD REWA HUZUR
(MADHYA PRADESH)

6. SHOBHA D/O SHRI TEKCHAND WADHWANI,,
AGED ABOUT 28 YEARS, R/O SATNA, DISTT.
SATNA (M.P.) (MADHYA PRADESH)

7. SATNAM DAS WADHWANI S/O SHRI VARIAL DAS,
AGED ABOUT 54 YEARS, OCCUPATION: BUSINESS
R/O GHONGHAR, REWA (MISHRA MISHTHAN
BHANDAR) VYANKAT ROAD REWA HUZUR
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 13-10-2023
19:49:41
3
(MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI D.S. DUBEY - ADVOCATE)

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

This miscellaneous appeal is filed by the legal heirs of the defendant being aggrieved of the order dated 26.02.2020 passed by learned 3rd Additional District Judge, Rewa in MJC No.1900054 of 2015 whereby an application filed by the appellants under Order 9 Rule 13 of the CPC for setting aside the ex parte judgment and decree dated 09.09.2014 passed in CS No.13-A/2012, has been dismissed.

Shri Sanjay Agrawal, learned Senior Advocate submits that dispute is amongst the family members.Varial Das Wadhwani had four sons: Teckchand Wadhwani (Plaintiff); Ashandas Wadhwani (defendant No.1 whose legal heirs have filed this appeal); Jethanand Wadhwani (defendant No.2); and Satnam Das Wadhwani (defendant No.3). It is submitted that suit property was purchased by registered sale deed dated 17.12.1977 in the name of Ashandas. It is measuring 1466.50 square feet.

On 17.11.1983 Ashandas gave half share in favour of Jethanand i.e. 733 square feet through a registered settlement deed. Thereafter 656 square feet was

given by Ashandas to Jethanand vide registered sale deed dated 03.12.1986. Thereafter remaining portion was given to Satnamdas which was reconveyed in favour of Jethanand and thus, Jethanand had become owner of the complete property.

It is submitted that ex parte judgment and decree (Annexure A-3) was

Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 13-10-2023 19:49:41

passed on 09.09.2014.The appellants gathered knowledge about such ex parte judgment and decree on 26.06.2015 when execution proceedings were started and they filed an application under Order 9 Rule 13 of the Code of Civil Procedure on 16.07.2015. It is submitted that vide impugned order dated 26.02.2020 (Annexre A-5) application under Order 9 Rule 13 CPC is rejected without assigning proper reasons. It is submitted that it is admitted position on 10.09.2013, defendants were proceeded ex parte. Prior to that on 09.05.2013, right to file written statement was closed. Thereafter an application was filed by the plaintiff for re-examination of their witnesses on 21.08.2014. Prior to that on 12.11.2013 after evidence of the plaintiff was closed, the defendant was given right to cross examine but admittedly no cross-examination was done.

It is submitted that once an application under Order 18 Rule 17 CPC was allowed, then trial Court was obliged to issue notice to the defendants. In absence of such notices, proceedings cannot be held to appropriate and thus, the judgment and decree suffer from vice of arbitrariness and, therefore, it is prayed that ex parte judgment and decree be set aside.

Shri D.S. Dubey, learned counsel for the respondents supports the impugned order and submits that conduct of the parties is such that no indulgence is required. In May, 2013 itself they had stopped appearing before the trial Court, and on 09.05.2013 their rights were closed and they were also aware of the proceedings and were watching from the sideline.

After hearing learned counsel for the parties and going through the record, I have perused the provision of Order 18 Rule 17 of the CPC. It provides that the Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such question to him as the Court deems fit. Thus, it is evident that it Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 13-10-2023 19:49:41

is in the discretion of the Court to recall any witness at any stage. There is no provision for issuing fresh notice to the defendant as argued by learned Senior Counsel. The law is that witness who has already been examined, can be recalled. This provision cannot be pressed into service for issuing summons to a fresh witness. Recalling of witness is too dependent on showing sufficient cause.

When these aspects are taken into consideration, then, since the witnesses who were already examined have been recalled and the appellants chose not to cross-examine despite liberty given to them to cross-examine as is evident from order-sheet dated 12.11.2013. It cannot be said that any prejudice is caused and under any provision of law court was required to issue fresh notice to the defendants on allowing an application under Order 18 Rule 17 CPC. Thus, when examined from this aspect, the contention put forth by Shri Agrawal, learned Senior Counsel that notices should have been issued before allowing an application under Order 18 Rule 17 of the CPC, is not made out and even otherwise the said order was revisable. The appellants failed to avail the remedy of revision. They were required to explain the delay which could not have been explained, they could not give explanation that why they had not moved an appropriate application for setting aside ex parte proceeding as were drawn against him on 10.09.2013. Therefore, learned trial Court has rightly held that application under Order 9 Rule 13 CPC is not maintainable.

Thus, there is no illegality in the impugned order calling for interference. The appeal fails and is hereby dismissed.

(VIVEK AGARWAL) Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 13-10-2023 19:49:41

JUDGE ks

Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 13-10-2023 19:49:41