Anil Verma vs Smt. Seeta Bai Agrawal
2024 Latest Caselaw 16548 MP

Madhya Pradesh High Court

Anil Verma vs Smt. Seeta Bai Agrawal on 6 June, 2024

                                                       1                           MA-3406-2022
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
                                             MISC. APPEAL No. 3406 of 2022

                           BETWEEN:-
                           ANIL VERMA S/O LAXMINARAYAN JEE VARMA, AGED
                           ABOUT    55  YEARS, OCCUPATION: SERVICE R/O
                           DANDAPUR, 72 SANCHI ROAD, VIDISHA (MADHYA
                           PRADESH)

                                                                                .....APPELLANT
                           (BY SHRI ANAND KUMAR SHARMA, ADVOCATE)

                           AND
                           1.    SMT. SEETA BAI AGRAWAL W/O LATE SHRI R.G.
                                 AGRAWAL, AGED ABOUT 61 YEARS, PRO. A.B.C.
                                 BOOK    DISTRIBUTERS,  HANUMAN     NAGAR
                                 RASOOLIYA, HOSHANGABAD (M.P.) (MADHYA
                                 PRADESH)

                           2.    A.B.C. BOOK DISTRIBUTERS HANUMAN NAGAR
                                 R AS OOLIYA, HOS HAN GAB AD THROUGH ITS
                                 MANAGER MR. PANKAJ AGRAWAL AGED 38 R/O
                                 HANUMAN NAGAR RASOOLIYA HOSHNGABAD
                                 TEHSIL AND DSITRICT HOSHANGABAD (MADHYA
                                 PRADESH)

                           3.    S.A.T.I. COOPRATIVE STORES LIMITED THROUGH
                                 ITS PRESIDENT, VIDISHA DISTRICT VIDISHA
                                 (MADHYA PRADESH)

                           4.    SHRI  DEVESH  ARYA DANDAPUR, VIDISHA
                                 SANCHI ROAD DISTRICT VIDISHA (MADHYA
                                 PRADESH)

                           5.    DR. P.M. BHANDARI S/O SHRI M.M. BHANDARI
                                 OCCUPATION: FORMER DIRECTOR S.A.T.I.
                                 (DEGREE) HALL R/O 74/1, MALVIYA NAGAR,
                                 BHOPAL (MP) (MADHYA PRADESH)

                                                                              .....RESPONDENTS


Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 07-06-2024
16:03:12
                                                                2                                 MA-3406-2022
                                  Reserved on             :          15.04.2024
                                  Pronounced on           :          06.06.2024

                                  This Miscellaneous Appeal having been heard and reserved for
                           order, coming on for pronouncement on this day, Justice Devnarayan
                           Mishra pronounced the following:
                                                                ORDER

This miscellaneous appeal has been filed being aggrieved by the order passed by the First District Judge, Hoshangabad in UNCIV No.31/2015 dated 08/04/2022, by which the appellant's application under Order 9 Rule 13 of the CPC for setting aside ex-parte judgment and decree was dismissed.

2. In the nutshell, the facts giving rise to this appeal are that, respondents- Smt. Seeta Bai Agrawal and A.B.C. Book Distributors, Hanuman Nagar, Hoshangabad have filed a Civil Suit No.1-B/2013 before the First Additional District Judge, Hoshangabad that was decided on 11/11/2014 including the appellants S.A.T.I. Cooperative Society Store, Vidisha, Dr. P.M. Bhandari, President, S.A.T.I. Cooperative Society Store Ltd., Vidisha and Shri Devesh Aarya, Secretary of the S.A.T.I. Cooperative Society Store and the appellant as a OSD of that Store. The suit was decreed against the defendants being aggrieved with that the appellant filed an application before the trial Court under Order 9 Rule 13 CPC.

3. Before the trial Court, the appellant took the ground that the suit was filed arraying 6 persons as defendants and the defendant No.6 died hence, his name was deleted and ex-parte decree was passed on 11/11/2014. The appellant was defendant No.5 in that suit. The appellant was serving in Vidisha and it was not possible for him to attend each date of hearing. On that, his counsel has

3 MA-3406-2022 advised him that there is no requirement to appear personally before the Court on each date of hearing and he was appearing on his behalf. On 31/07/2014, he was engaged in work relating to job hence, he could not attend the Court and his counsel also not appeared as he has not signed the vakalatnama and the trial Court proceeded ex-parte against him. He tried to gather the information of the status of the case. He was informed that the dispute is between the plaintiff and defendant/institution and he has not to bother for it and on 10/02/2015, the colleague Shri P.M. Bhandari informed him that the trial Court has passed the judgment and he has also been held liable. On 10/02/2015, he gathered the information on that he came to know on 11/11/2014 ex-parte judgment and decree has passed against him. After that, he was engaged in State Level Cricket Tournament that was from 13/03/2015 to 21/03/2015 and 16/03/2015, he contacted the counsel of Hoshangabad who informed him that the certified copy of the order has been prepared but till 21/03/2015, the appellant cannot went to Hoshangabad and on 22/03/2015, he reached to Hoshangabad and consulted the Advocate on 26/03/2015, the application was prepared and he has filed the application under Order 9 Rule 13 CPC.

4. The trial Court issue notice to respondents who has filed the reply. The trial Court recorded the evidence of the parties and after hearing both the parties passed the impugned order being aggrieved by this appeal has been

filed.

5. Learned counsel for the appellant has submitted that the trial Court has not properly appreciated the evidence. The appellant has submitted the sufficient fact for not appearing before the trial Court but the trial Court has not properly appreciated the evidence. His counsel was appearing before the trial Court but his signatures were not found in the vakaltnama hence he could not

4 MA-3406-2022 have appeared on that date and the trial Court has passed the ex-parte order. The trial Court has also dismissed the application on the ground that by filing this application he is prolonging the litigation. The institution has already filed the appeal and that is registered as FA No.156/2015, hence it is baseless that the appellant wanted to prolong the litigation by filing this application. He further submitted that the application be allowed and ex-parte decree be set aside.

6. Learned counsel for the respondent has submitted the order passed by the trial Court is as per fact and law.

7. I have gone through the record of the trial Court. The trial Court in impugned order has discussed the evidence in Para 11 of the order has stated that on 31/03/2014, the case was listed for plaintiff's evidence and the present defendant have cross-examined the witness of the plaintiff and the defendants No.4 & 5 are not present hence the Court proceeded ex-parte against them.

8. The counsel engaged by defendant No.4/appellant (herein) was represented by his counsel Shri Ajeet Singh Rajput and he was marking his presence on 25/06/2013, 04/04/2014, 25/04/2014, 08/07/2014 and 09/07/2014 and the Court has also observed that single counsel is representing for all the parties and on 31/07/2014 all of sudden the counsel for respondent No.5 has stated that he is not representing the respondent No.5 and on that date, the learned counsel Shri Ajeet Singh has disclosed that he has not signed the vakalatnama.

9. The trial Court also come to the conclusion that another case No.2- B/2013 was also pending before that Court. After that, the appellant- Anil verma had appeared before the Court and on 09/09/2014, he appeared before the Court but not appeared in the instant case and the trial Court also concluded

5 MA-3406-2022 that the appellant was having the knowledge of judgment and decree but he has not filed the application for setting aside ex-parte order and waiting till the execution was filed.

10. I have gone through the evidence of the appellant- Anil Verma in ParaNo. 9 of the statement, the appellant has stated that after 31/07/2014, till the judgment and decree was passed, he was constant in touch with his Advocates and was enquiring to them and the Advocates were informing him that he is not required to be personal present before the Court. In Para No. 11, he has admitted that till 31/07/2014, his counsel was informed him the stage and the proceedings. The specific question asked whether he has lodged any complaint against the Advocates for misleading him? He has stated that he has not lodged any written statement against the Advocates. He has further admitted that witness Alok Jain was examined. He was present in the Court room and further stated that he came to Court to enquire the case. On that, he enquired the case of Seeta Bai and he has particularly asked his Advocates regarding the case in which ex-parte decree has been passed. His counsel advised him that the witnesses are being examined and he will inform him whenever required. Thus, what he state that his counsel has misleaded him, not informed him properly, otherwise there was no reason.

11. Looking to the above facts, the trial Court has rightly concluded that the appellant was having the knowledge of the proceeding of the Court and he was not appearing and the fact is admitted by the appellant that in other case, the witness was examined he was present before the Court but in that situation, it is not possible, that the party has not enquired regarding this case.

12. In this case, the notice was served upon the appellant and he was regularly attending the case through his counsel and on the date when the ex-

6 MA-3406-2022 parte decree passed he has not served the proper explanation for not appearing before the Court. Hence, trial Court has rightly, dismissed the application.

13. Hence, the order of the trial Court is affirmed.

14. This miscellaneous appeal being devoid of merits and is dismissed accordingly.

DEVNARAYAN MISHRA) JUDGE RS