Madhya Pradesh High Court
Purushottam vs Mohan Prasad Through Legal ... on 2 August, 2024
1 MP-4000-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 2 nd OF AUGUST, 2024
MISC. PETITION No. 4000 of 2024
PURUSHOTTAM
Versus
MOHAN PRASAD THROUGH LEGAL REPRESENTATIVE SHANTI BAI
AND OTHERS
Appearance:
Ms. Surbhi Bahal, learned counsel for the Petitioner.
Shri Romil Verma, learned counsel for the respondent/State.
ORDER
This Misc. Petition under Article 227 of the Constitution of India is
preferred challenging the legality of order dated 30.05.2024 (Annexure P/1) in
Misc. Civil Appeal No.13/2023 by First District Judge, Bioara, District Rajgarh
arising out of Civil Suit No.19/2023 by Civil Judge, Senior Division Biora
whereby the order of Trial Court rejecting an application under Order 9 Rule 13 of
C.P.C. read with Section 5 of Limitation Act, 1963 has been reversed and allowed.
Facts of the case in short as under;-
2. The petitioner/plaintiff filed Civil Suit for declaration of title and
permanent injunction against the ansecter of respondent No.1 and 2 namely Mohan
Prasad and Suresh. The Civil Suit was proceeded ex-parte and decree was passed
30.11.2005. The respondents/defendants filed an application for setting aside
judgment and decree of the Trial Court but were unsuccessful before the Trial
Court as well as Appellate Court. The respondents/defendants approached the
High Court of Madhya Pradesh, Bench at Indore by way of Writ Petition
2 MP-4000-2024
No.3766/2017 and vide order dated 26.02.2018 (Annexure P/8), the order dated
03.07.2015 by Trial Court and order passed by Appellate Court dated 09.03.2017
were quashed and respondents /defendants were provided opportunity to appear
before the Trial Court on 26.03.2018 and directed the Trial Court to pass an
appropriate order in accordance with law after granting opportunity of hearing to
all the concerned parties.
3. In pursuance of the order (Annexure P/8), the application was heard
before the Trial and the Trial Court rejected the application vide order dated
27.09.2023 in Misc.Suit No.19/2023 . The order of the Trial Court was challenged
before the First District Judge, Biora, District Rajgarh by way of Misc. Civil
Appeal No.13/2023 and the First Appellate Court vide order dated 30.05.2024
reversed the order of Trial Court and allowed the application of the
respondents/defendants and also set aside ex-parte judgment and decree dated
30.11.2005 passed in favour of the petitioner/plaintiff and ordered to restore the
Civil Suit No.33A/2005 and decide the same after affording an opportunity to both
the parties.
4. Challenging the order dated 30.05.2024 (Annexure P/1) this Misc.
Petition is preferred on the ground that the First District Judge, Biaora, District
Rajgarh committed grave error in concluding the case without due consideration of
the evidence put forth in the case. The findings of the Trial Court were not taken
into consideration. The documents marked as Ex.D-1 and D-18 were presented on
behalf of the petitioner in MJC No.19/2023 upon which the Trial Court committed
a serious error by allowing the appeal without giving even the slightest
consideration on them. The Court failed to consider this critical circumstances
constitutes a serious error that each party to the case is obligated to actively
participate in the proceedings after being informed about the case, rather than
3 MP-4000-2024
remaining silent for an extended period and passed the impugned order
mechanically that suffers from the defect of non-application of mind.
I have heard learned counsel for the petitioner and perused the record.
5. The First Appellate Court has categorically discussed the service report
(Ex. P/3 and Ex.P/4) process server in which it was stated that the defendant No.1
Mohanlal and Suresh were not residing there. In the report there was no mention
that summons to whom service was effected by affixing the thumb impression are
adult family members. The details of person whose thumb impression was taken
are not described. There was no service effected at the address at Indore. The
period of limitation to run from the date of knowledge of decree.
6. In view of above, the findings of the Appellate Court are in accordance
with the Article 123 of Scheduled Appendix of the Limitation Act, 1963. Thus, no
illegality committed by the Appellate Court to be interfered under Article 227 of
the Constitution of India. Accordingly, Misc. Petition is hereby dismissed.
(GAJENDRA SINGH)
JUDGE
Praveen
