Madhya Pradesh High Court
Manoj Verma vs Laxman Prasad Mangal S/O Late Shri ... on 2 May, 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 2 nd OF MAY, 2024
CIVIL REVISION No. 627 of 2023
BETWEEN:-
MANOJ VERMA S/O SHRI RAMESH CHAND VERMA,
AGED ABOUT 36 YEARS, OCCUPATION: BUSINESS GALI
NO 3 POWAR SAHAB KI ZEEN MORENA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI SANTOSH AGRAWAL - ADVOCATE)
AND
LAXMAN PRASAD MANGAL S/O LATE SHRI MISHRILAL
MANGAL AGE 71 YEAR R/O PANCHAYATI
DHARMSHALA PADAV MORENA THROUGH POWER OF
ATTORNEY SANJEEV MANGAL S/O SHRI LAXMAN
PRASAD MANGAL, AGED ABOUT 41 YEARS,
PANCHAYATI DHARMASHALA PADAV TEHSIL MORENA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI YASH SHARMA - ADVOCATE )
This revision coming on for ADMISSION. this day, the court passed
the following:
ORDER
Petitioner/defendant has filed this petition under Section 115 of PC
challenging the order dated 128/2023 passed by Principal District Judge,
Morena in MCA No. 43/2023 affirming the order dated 10/7/2023 passed by III
Civil Judge, Senior Division, Morena in MJC No. 20/2019. By the order dated
10/7/2023, the application filed by petitioner under Order IX Rule 13 read with
Section 151 of CPC has been rejected.
2. Briefly stated facts of the case are that respondent/plaintiff filed a suit
against the petitioner for recovery of arrears of rent and evidence pleading that
for the purpose of business of his son, he is in need of suit property and got the
ex parte decree dated 23/1/2019 in his favour. By filing application under Order
IX Rule 13 CPC, petitioner sought setting aside of ex parte judgment and
decree on the ground that petitioner is running jewellery shop in the suit
premises and thereby earning his livelihood. Respondent has many other
properties in the area and therefore he is not in bona fide need of the suit
premises. Petitioner never got any summon from the Court in respect of filing
of suit till the date of filing of application under Order IX Rule 13 CPC. By
filing reply, respondent denied each and every contents of the application. It is
specifically stated that petitioner was sent a registered demand notice through
Advocate on 23/2/2018 which has been served on petitioner on 27/2/18 as per
report of postman; however, even after receiving notice, petitioner did not
comply the notice and did not pay the arrears of rent. Petitioner is not paying
the rent of suit shop from 1/7/2011 and shop is closed since long and also
creating nuisance. Court below after recording evidence, dismissed the
application and said order has been affirmed by the impugned order. Hence,
petitioner is before this Court.
3. It is the submission of learned counsel for the petitioner that no notice
was ever served upon his and the endorsement on so called summons are not
correct and signature over it is not of petitioner as such no opportunity of
hearing was provided to the petitioner prior to passing of final decree in light of
Order 5 Rule 5 of CPC according to which the Courts must have issued
summons for settling the issue or final disposal. Learned courts below erred in
disbelieving the plea of petitioner regarding his ailment even after evidence of
treating doctor on oath. Process Server was required to be examined before
rejecting the application of the petitioner under Section 114g of the Evidence
Act. Orders impugned passed by the learned Courts below are passed in
technical manner and therefore, are required to be dismissed. In support of his
contentions, he relied upon decisions of Apex Court in the matter of
G.P.Srivastava Vs. R.K.Raizada and Ors., (2000)3SCC54, Sushil Kumar
Sabharwal Vs. Gurpreet Singh and Ors., (2002)5SCC377 as well as
decision of this Court in the matter of Sushila Vs. Rajesh Kumar
Pandey,2017(3)MPLJ139.
4. On the other hand, learned counsel for the respondent opposed the
prayer and while arguing in support of impugned orders, prayed for dismissal
of the petition.
5. Heard.
6. Upon perusal of the orders impugned, ex facie, there is no illegality in
the proceedings before the trial Court, however, this Court cannot lose sight of
the fact that the procedural laws are handmaid laws to do justice between
parties and is not mistress of the judicial process. True it is, that for defaults on
the part of the defendant in appearance before the Court, the same has been
compensated by payment of cost, in the past. It has come on record that
petitioner remained ill for long time and even he denied his signature over the
summons and pleaded that he was not in knowledge of the filing of the suit and
therefore could not appear before the Court. As such, non-appearance should
not have been viewed so seriously so as to cause prejudice to the petitioner
having been proceeded ex parte resulting into passing ex parte judgment and
decree. The trial Court could have compensated the respondent/plaintiff with
payment of suitable cost to ensure paramount object of doing substantive
justice between the parties. That having not been done, this Court considers it
expedient to set aside the ex parte decree and permit the petitioner to participate
in the proceedings, however, on payment of cost to the respondent/plaintiff.
7. Consequently, the impugned orders passed by the Courts below
dismissing the application filed under Order IX Rule 13 CPC are set aside with
the following directions:
(i) the parties shall appear before the trial Court on 31st May, 2024.
(ii) Petitioner shall deposit the cost of Rs.5,000/- (Rupees five thousand
only) with the respondent on the said date.
(iii) Petitioner shall pay the total amount of mesne profits accrued as on
date, on such term and conditions the trial Court deems fit and proper in the
matter of installments for which the petitioner shall file an application on the
same date.
(iv) As the suit is of the year 2018 and due to non-participation of the
defendant, the proceedings have been lingered on, therefore, the petitioner shall
not seek unwarranted adjournment and ensure full cooperation in compliance of
the suit proceedings of the suit. and
(v) Trial Court shall take all endeavours to decide the suit as early as
possible within 12 months.
8. Registry is directed to transmit the original record to the trial Court,
forthwith.
9. With the aforesaid directions, civil revision stands allowed and
disposed of.
DN: c=IN, o=HIGH COURT OF MADHYA
(ROPESH CHANDRA VARSHNEY)
JAI PRAKASH
PRADESH BENCH GWALIOR, ou=HIGH COURT OF
MADHYA PRADESH BENCH GWALIOR,
2.5.4.20=287738d30aabaeda9b10cecdf179cec8
65c7633f4cfb9e38ce14fcbb05b9522a,
SOLANKI
postalCode=474001, st=Madhya Pradesh,
serialNumber=8D6BC1C9FCE36623D0BD6B8072
A2D8C01433EBD48AE4F609F108CA8F8DE6B52
2, cn=JAI PRAKASH SOLANKI
Date: 2024.05.06 10:24:37 +05'30'
JUDGE
jps/-
