Madhya Pradesh High Court
Valsingh Bhilala vs Deceased Jharkali Through Lrs. ... on 2 September, 2023
Author: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 2nd OF SEPTEMBER, 2023
MISC. PETITION No. 919 of 2023
BETWEEN:-
VALSINGH BHILALA S/O SHRI TELSINGH, AGED ABOUT 49
YEARS, OCCUPATION: AGRICULTURE R/O VILLAGE BAYDIYA
TEHSIL SONDWA DISTT. ALIRAJPU (MADHYA PRADESH)
.....PETITIONER
(MR. SHAILENDRA SHRIVASTAVA, ADVOCATE FOR PETITIONER)
AND
DECEASED JHARKALI THROUGH LRS. DASHRIYA BHILALA
S/O SHRI RICHHADIYA BHILALA, AGED ABOUT 50 YEARS,
1.
OCCUPATION: AGRICULTURE R/O VILLAGE BAYDIYA
TEHSIL SONDWA DISTT. ALIRAJPUR (MADHYA PRADESH)
DECEASED JHARKALI THROUGH LRS. SMT. DAHLIYA W/O
ADALIYA, AGED ABOUT 49 YEARS, OCCUPATION:
2.
AGRICULTURE DARKALI TEH. SONDWA DIST. ALIRAJPUR
(MADHYA PRADESH)
DECEASED JHARKALI THROUGH LRS. SMT. KEDIYA BHILAL
S/O SHRI RICHHADIYA BHILALA, AGED ABOUT 50 YEARS,
3. OCCUPATION: AGRICULTURE BAYDIYA, TEH. SONDWA DIST.
ALIRAJPUR AT PRESENT DARKALI TEH. SONDWA DIST.
ALIRAJPUR (MADHYA PRADESH)
KOTHARIYA S/O SHRI PREM SINGH, AGED ABOUT 57 YEARS,
4. OCCUPATION: AGRICULTURE BAYDIYA TEH. SONDWA DIST.
ALIRAJPUR (MADHYA PRADESH)
MAGAN SINGH S/O NARSINGH BHILALA, AGED ABOUT 49
5. YEARS, OCCUPATION: AGRICULTURE BAYDIYA TEH.
SONDWA DIST. ALIRAJPUR (MADHYA PRADESH)
STATE OF M.P. THROUGH SUB REGISTRAR ALIRAJPUR
6.
ALIRAJPUR (MADHYA PRADESH)
STATE OF M.P. THROUGH COLLECTOR ALIRAJPUR
7.
(MADHYA PRADESH)
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 06-09-
2023 11:33:04
2
.....RESPONDENTS
(MS. GEETANJALI CHAURASIA ADVOCATE FOR STATE NO.7)
This petition coming on for admission this day, the court
passed the following:
ORDER
This miscellaneous petition has been filed by the petitioner
under Section 227 of the Constitution of India against the order
dated 02.02.2023 (Annexure-P/1) passed by learned Additional
Judge to the Court of First Civil Judge, Junior Division, Alirajpur
(MP) in Regular Civil Suit No.38-A/2017 whereby an application
under Order 9 Rule 7 of Code of Civil Procedure, 1908 (for short
'CPC') and application under Section 5 of Limitation Act, 1963,
has been dismissed.
(2) The facts leading to the present petition is that the
respondent No.1 (a)(b)(c) are the legal heirs of Smt. Jharkali who
has filed the suit for cancellation of sale deed and recovery of
possession and permanent injunction against the petitioner and
respondents No.2 to 5. The copy of plaint is Annexure-P/2. The
petitioner/defendant No.1 has filed the written statement and
denied the averments made in the plaint. On 03.11.2022, the case
was fixed for recording of the evidence of respondent
No.1/plaintiff. On that day, counsel for the petitioner has pleaded
no instruction and therefore the trial Court proceeded ex-parte
against the petitioner. Copy of order dated 03.11.2022 is
Annexure-P/3.
(3) The petitioner on 31.01.2023 submitted an application under
Order 9 Rule 7 read with Section 151 of CPC and an application
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 06-09-
2023 11:33:04
under Section 5 of Limitation Act, 1963 before the trial Court and
stated that he had gone to Gujarat for labour work due to which he
could not get the information about the date of hearing and also
due to missing of the mobile number of his Counsel he could not
contact him and when he returned from Gujarat know about the
said order from his Counsel. He further stated that reason for non-
appearance on the date of hearing is sufficient and proper and the
copy of application submitted is herewith is Annexure-P/4.
(4) The trial Court without considering the reasons assigned in
the application by order dated 02.02.2023 has dismissed the
application and copy of impugned order is Annexure-P/5. Being
aggrieved by the impugned order, the petitioner has preferred this
miscellaneous petition before this Hon'ble Court for redressal of
his grievance and submits that the impugned order passed by trial
Court is without any reason and it is neither legal nor proper. He
submits that trial Court has committed grave error in not
considering the fact that on 03.11.2022 the case was fixed for
recording of evidence of petitioner and hence his personal
presence was not required.
(5) Counsel for the petitioner submits that he had no
instructions in the matter on behalf of petitioner, hence notice must
be issued to the petitioner but the trial Court has not issued any
notice to petitioner and has passed the ex-parte order and hence
the impugned order is against the settled principles of law and the
same is liable to be set-aside.
(6) After hearing counsel for the petitioner at length and on
perusal of the record it is found that the impugned order dated
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 06-09-
2023 11:33:04
02.02.2023 passed by the trial Court is improper and the trial
Court has rejected the application on the ground that the counsel
for petitioner has pleaded no instructions and thereafter has
proceeded ex-parte order and has stated that in his order it cannot
be stated that he was no aware of the ex-parte order and thus the
application for setting-aside the ex-parte order has been rejected.
(7) So far as the decision passed by the Hon'ble Supreme Court
in the case of Malkiat Singh is concerned, the relevant paragraph
7 reads as under:-
"7. The appellants in their application clearly pleaded
that they were neither careless nor negligent and as soon as they
learnt about the ex-parte decree dated 8.2.1992 and the order
dated 18.11.1991, they filed the application to set aside the
order and ex-parte decree. A perusal of the record also reveals
that the appellants were neither careless nor negligent in
defending the suit. they had engaged a counsel and were
following the proceedings. In this fact situation, the trial court,
which had admittedly not issued any notice to the appellants
after their counsel had reported no instructions, should have, in
the interest of justice, allowed that application and proceeded in
the case from the stage when t he counsel reported no
instructions. The appellants cannot, in the facts and
circumstances of the case, be said to be at fault and they should
not suffer. In taking this view, we are fortified by a judgment of
this Court in Tahil Ram Issardas Sadarangani & Ors. Vs.
Ramchand Issardas Sadarangani & Anr. (1993 (Supp.) 3 SCC
256) wherein the bench opined:-
"It is not disputed in the present case that on March 15,
1974 when Mr. Adhia, advocate withdrew from the case, the
petitioners were not present in court. There is nothing on the
record to show as to whether the petitioners had the notice of
the hearing of the case on that day. we are of the view, when
Mr. Adhia withdrew from the case, the interests of justice
required, that a fresh notice for actual date hearing should have
been sent to the parties. In any case in the facts and
circumstances of this case we feel that t he party in person was
not at fault and as such should not be made to suffer."
(emphasis supplied)
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 06-09-
2023 11:33:04
(8) The facts of the present case, is tested on the anvil of the
aforesaid dictum of the Supreme Court, it is apparent that the trial
Court did not send any fresh notice to the petitioner when his
counsel pleaded no instructions in the trial Court and in such
circumstances, it cannot be said that the petitioner's application
was liable to be dismissed only because he appeared in the trial
Court after a period of 88 days owing to his negligence.
(9) Accordingly, the miscellaneous petition stands allowed and
the impugned order dated 02.02.2023 (Annexure-P/1) is set
aside. Consequently, the application filed by the petitioner under
Order 9 Rule 7 of CPC before the trial Court shall also stand
allowed and the order challenged therein is set-aside. The learned
Judge of the trial Court is requested to proceeded further in
accordance with law.
(10) The miscellaneous petition stands allowed and disposed of.
(11) Certified copy, as per Rules.
(H I R D E S H)
Arun/- JUDGE
Signature Not Verified
Signed by: ARUN NAIR
Signing time: 06-09-
2023 11:33:04
