Madhya Pradesh High Court
Ramkishan Singh Kushwah vs Narpat Singh @ Nirpat Singh on 15 February, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 15 th OF FEBRUARY, 2024
CIVIL REVISION No. 1005 of 2023
BETWEEN:-
RAMKISHAN SINGH KUSHWAH S/O SHRI SUKHRAM
SINGH KUSHWAH, AGED ABOUT 56 YEARS,
OCCUPATION: AGRICULTURIST, R/O VILLAGE
VASVAYA KA PURA JADERUA BANDH MORAR POST
AND DISTRICT GWALIOR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI S.K.SHRIVASTAVA - ADVOCATE )
AND
1. NARPAT SINGH @ NIRPAT SINGH S/O SHRI
GIRVAR SINGH KUSHWAH, AGED ABOUT 62
YEAR S, OCCUPATION: AGRICULTURIST WATER
WORKS COLONY NEAR NURSERY DISTRICT
BHIND (MADHYA PRADESH)
2. RAMKISHORE SINGH KUSHWAH S/O SHRI
NARPAT SINGH KUSHWAH @ NIRPAT SINGH
KUSHWAH, AGED ABOUT 37 YEARS, R/O WATER
WORKS COLONY, NEAR NURSERY, BHIND
(MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS THOUGH SERVED)
This revision coming on for admission this day, the court passed the
following:
ORDER
Petitioner/plaintiff has filed this revision under Section 115 of CPC
against the order dated 25/10/2023 passed by 10th District Judge, Gwalior in
MCA No. 150/2022; whereby, the order dated 22/7/2022 passed in MJC No.
4/2016 by 10th Civil Judge, Senior Division, District Gwalior has been affirmed.
2. Facts giving rise to the controversy are to the effect that appellant as
plaintiff filed a civil suit bearing No. 29-B/2016, which was pending for evidence
of the appellant on 11/10/2016 before the trial Court and since as per the
pleading on that date counsel for the plaintiff had done go Jhansi, and plaintiff
had gone in close relation for bereavement, an application for adjournment was
filed; however, same was rejected and the suit was also dismissed. Thereafter,
appellant filed an application under Order IX Rule 9 CPC for setting aside of
dismissal order of suit; however, same was rejected on 22/7/2022 and therefore,
he filed a Misc. Civil Appeal, which was also dismissed vide impugned order
dated 25/10/2023 affirming the order dated 22/7/2022, hence, petitioner is
before this Court.
3. It is the submission of learned counsel for the petitioner that learned
trial court committed substantial error of law in dismissing the application filed
by plaintiff for adjournment and thereby also dismissing the suit of plaintiff
under Order XVII Rule 1 of CPC. At the best, if the plaintiff could not keep his
witness present on that that, then the right to lead evidence should have been
closed. It cannot be a ground for dismissal of suit that on earlier occasion also
plaintiff was granted adjournment for leading evidence. It is also a settled law
that technical law should not prevail over grant of substantial justice. In support
of his submission he relied upon the decisions of this Court in the matter of
Amit Bajpayee Vs. Subodh Sahu, 2016(II) MPWN14.
4. None appeared on behalf of the respondents though served.
5. Order 9 Rule 9 of the Code of Civil Procedure reads as under:-
"Order 9 Rule 9 - Decree against plaintiff by default
bars fresh suit.--(1) Where a suit is wholly or partly dismissed
under rule 8, the plaintiff shall be precluded from bringing a fresh suit
in respect of the same cause of action. But he may apply for an order
to set the dismissal aside, and if he satisfies the Court that there was
sufficient cause for his non-appearance when the suit was called on
for hearing, the Court shall make an order setting aside the dismissal
upon such terms as to costs or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit.
(2) No order shall be made under this rule unless notice of the
application has been served on the opposite party."
The aforesaid provision makes it clear that where a suit is wholly or partly
dismissed, the party aggrieved may apply for an order to set the dismissal aside,
and if he satisfies the Court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the Court shall make an
order setting aside the dismissal upon such terms as to costs or otherwise as it
thinks fit, and shall appoint a day for proceeding with the suit.
In Kher Singh vs. Phoolchand [1981 JLJ SN 5], this Court has taken
a view as follows:-
"The provisions of Order 9 are not penal in character and in
absence of motive to remain deliberately absent from the Court, the
defendant should be given a chance to meet the case on merits. It has been
further held that Rules of procedure are not to be so strictly construed and
applied as to deny justice."
In view of the aforementioned judgment of this Court, this Court is of the
opinion that learned Court below has dismissed the application under Order IX
Rule 9 CPC in a very rigid and hyper technical manner whereas, sufficient cause
was made out by the plaintiff for non-appears of eight his counsel for himself,
therefore, under such circumstances, application under Order IX Rule 9, C.P.C.
deserves to be allowed and the impugned orders dated 25/10/2023 and
22/7/2022 deserve to be set-aside and are set-aside and while restoring the civil
suit, the matter is remanded back to the concerned trial Court to decide the case
on merit after giving both the parties a chance to prove their rival case at a cost
of Rs.2,500/- to be deposited in DLSA - District Gwalior.
Let a copy of this order be sent back expeditiously to the concerned
Court along with the record of the concerned case.
The parties shall appear before the concerned trial Court on 5th March,
2024.
(ROOPESH CHANDRA VARSHNEY)
JUDGE
JPS/-
JAI Digitally signed by JAI PRAKASH SOLANKI
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR, ou=HIGH COURT OF MADHYA
PRAKASH
PRADESH BENCH GWALIOR,
2.5.4.20=287738d30aabaeda9b10cecdf179cec865c7
633f4cfb9e38ce14fcbb05b9522a,
postalCode=474001, st=Madhya Pradesh,
serialNumber=8D6BC1C9FCE36623D0BD6B8072A2D
SOLANKI
8C01433EBD48AE4F609F108CA8F8DE6B522, cn=JAI
PRAKASH SOLANKI
Date: 2024.02.17 11:17:14 +05'30'
