Kashi Prasad (Dead) Thrl Lrs. Raj ... vs Kamta Prasad(D) Muliya
2024 Latest Caselaw 15948 MP

Madhya Pradesh High Court

Kashi Prasad (Dead) Thrl Lrs. Raj ... vs Kamta Prasad(D) Muliya on 29 May, 2024

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

                                                          1
                              IN     THE     HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                       BEFORE
                                      HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                 ON THE 29 th OF MAY, 2024
                                               CIVIL REVISION No. 107 of 2007

                            BETWEEN:-
                            1.      KASHI PRASAD (DEAD) THR LRS.
                            (i)     RAJ BAHADUR S/O LT. KASHI PRASAD, AGED
                                    ABOUT 37 YEARS, VILLAGE PAIKANPUR TEH.
                                    AJAYGARH (MADHYA PRADESH)

                            (ii)    SUKHDEIYA YADAV W/O KASHI PRASAD, AGED
                                    ABOUT 56 YEARS, VILLAGE PAIKANPUR TEH.
                                    AJAYGARH (MADHYA PRADESH)

                            (iii)   KAMLESH YADAV S/O KASHI PRASAD, AGED
                                    ABOUT 34 YEARS, VILLAGE PAIKANPUR TEH.
                                    AJAYGARH (MADHYA PRADESH)

                            (iv)    SMT. REKHA W/O SHRI JAI KARAN, AGED ABOUT
                                    29   YEARS, VILLAGE KHUTHA TEH. KARBEI
                                    (UTTAR PRADESH)

                                                                                .....PETITIONERS
                            (BY SHRI DEVENDRA KUMAR TRIPATHI, ADVOCATE)

                            AND
                            1.      KAMTA PRASAD (DEAD) THR. LRS MULIYA W/O
                            (A)     KAMTA PRASAD YADAV, AGED ABOUT 45 YEARS,
                                    MAHOBA TEHSIL LAUDI DIST.CHHATARPUR
                                    (MADHYA PRADESH)

                            (B)     SMT. PUNIYA WIFE OF SH. GULAB YADAV, AGED
                                    ABOUT 30 YEARS, BAHORWAPURVA, BANDA U.P.
                                    (UTTAR PRADESH)

                            (C)     SMT. GAURA (DEAD) THR LRS
                            3-A     BADE S/O SHRI RANJEET YADAV
                            3-B     CHHOTE S/O SHRI RANJEET YADAV
                            3-C     HARIMAN S/O SHRI RANJEET YADAV
                                    ALL R/O VILLAGE BILGAWAN, THANA BISANDA
                                    TAH. AND DISTT.BANDA UTTAR PRADESH

Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 6/1/2024
1:36:19 PM
                                                        2
                            (D)   JAGDISH SON OF SH. KAMTA PRASAD YADAV,
                                  AGED ABOUT 26 YEARS, MAHOBBA, LAUDI,
                                  CHHATTARPUR (MADHYA PRADESH)

                            (E)   BHAGWATI D/O KAMTA PRASAD YADAV, AGED
                                  ABOUT    16    YEARS, MAHOBBA,   LAUDI,
                                  CHHATTARPUR (MADHYA PRADESH)

                            (F)   RAJMANI D/O KAMTA PRASAD YADAV, AGED
                                  ABOUT    16    YEARS, MAHOBBA,  LAUDI,
                                  CHHATTARPUR (MADHYA PRADESH)

                            (G)   RAM-MANI D/O KAMTA PRASAD YADAV, AGED
                                  ABOUT    8     YEARS, MAHOBBA,   LAUDI,
                                  CHHATTARPUR (MADHYA PRADESH)

                            (H)   SHYAM MANI D/O KAMTA PRASAD YADAV, AGED
                                  ABOUT 5 YEARS, OCCUPATION: TH.NG. MULIYA
                                  MAHOBBA, LAUDI, CHHATTARPUR (MADHYA
                                  PRADESH)

                            (I)   RAVINIYA D/O KAMTA PRASAD YADAV, AGED
                                  ABOUT 4 YEARS, OCCUPATION: TG.NG. MULIYA
                                  MAHOBBA, LAUDI, CHHATTARPUR (MADHYA
                                  PRADESH)

                            (J)   BHAIYARAJA S/O KAMTA PD. YADAV, AGED
                                  ABOUT 2 YEARS, OCCUPATION: TH.NG. MULIYA
                                  MAHOBBA, LAUDI, CHHATTARPUR (MADHYA
                                  PRADESH)

                            (2)   MUST. BABU D/O GAYA AHIR, AGED ABOUT 40
                                  YEARS, WIFE OF BADA AHIR, R/O PAIKPUR, TEH.
                                  AJAIGARH DISTRICT-PANNA (M.P.)

                            3.    MUST. GODIYA D/O GAYA AHIR, W/O SH. BAHORA
                                  YADAV, AGED ABOUT 45 YRS. R/O BASRAH,
                                  TEHSIL NARAUNI, DISTT. BANDA (U.P.)
                                  MUST. BHURI D/O SH. GAYA PRASAD, WIF OF
                            4.    ARJUN YADAV, AGED ABOUT 32 YEARS, MAHUI,
                                  NARAINI, BANDA, U.P. (UTTAR PRADESH)

                            5.    STATE OF M.P. THROUGH THE COLLECTOR,
                                  PANNA (MADHYA PRADESH)

                                                                                   .....RESPONDENTS
                            (BY SHRI ABHISHEK ARJARIA, ADVOCATE FOR RESPONDENTS)

                                  This revision coming on for hearing, this day, th e court passed the
Signature Not Verified
Signed by: KUMARI PALLAVI
SINHA
Signing time: 6/1/2024
1:36:19 PM
                                                                 3
                            following:
                                                                 ORDER

This civil revision was admitted for final hearing on 04.04.2007 and with the consent of parties, is heard finally today.

2. This civil revision has been preferred by the applicant/plaintiff challenging the order dtd. 19.01.2007 passed by Additional District Judge, Panna in MCA No.16/2005 affirming the order dtd.06.12.2005 passed by Civil Jude Class-II, Ajaygarh, District Panna in MJC No. 11/2002 whereby applicant/plaintiff's application under Order 9 Rule 9 CPC has been dismissed by courts below.

3. Facts in short are that a civil suit was filed by applicant/plaintiff for declaration of title and permanent injunction in respect of agricultural land, which after recording evidence of the parties, was decreed by trial court vide judgment & decree dtd. 11.05.2000, which was challenged by the defendants in regular civil appeal, in which the matter was remanded to trial court vide judgment & decree dtd. 13.03.2001 for decision of civil suit afresh, however, no date of appearance of the parties before trial court was given by first appellate court.

4. In pursuance of judgment of remand the plaintiff appeared before trial court on 10.04.2001 through his counsel Shri Vimal Shrivastava. As none had appeared on behalf of the defendants 1-4, therefore, trial court thought fit to issue notice to them. Order sheet dtd. 03.05.2001 shows that case was fixed for

appearance of the defendants 1-4 for 03.07.2001, on which date, the defendants put their presence before trial court through their counsel Shri B.R. Tiwari, but the counsel already appearing for the plaintiff namely Shri Vimal Shrivastava, Advocate pleaded no instructions and prayed for dismissal of the suit, thereupon trial court dismissed the suit on 03.07.2001 for want of appearance

of the plaintiff. Upon getting knowledge of dismissal of suit, the plaintiff moved an application on 29.10.2001 before trial court under Section 151 CPC complaining that record sent by first appellate court is not traceable, thereupon report was submitted by concerning dealing assistant on 27.11.2001 to the effect that civil suit has already been dismissed and thereafter the said application under Section 151 CPC was dismissed on 19.08.2002. In the meantime i.e. on 27.11.2001, the plaintiff moved an application under Order 47 Rule 1 CPC for reviewing the order dtd. 03.07.2001, which was also dismissed on 19.08.2002 and on the same date i.e. on 19.08.2002, another application under Order 9 Rule 9 CPC was filed for restoration of the civil suit in which the defendants appeared and opposed the prayer for restoration of civil suit. Ultimately, trial court vide order dtd. 06.12.2005 dismissed the application under Order 9 Rule 9 CPC and the order dtd. 06.12.2005 was affirmed in miscellaneous appeal by the impugned order dtd. 19.01.2007, against which instant civil revision has been filed.

5. Learned counsel appearing for the applicant/plaintiff submits that as duly engaged counsel Shri Vimal Shrivastava had appeared on behalf of the plaintiff even without knowledge of the plaintiff, therefore, upon pleading no instructions by him, it was bounden duty of trial court to issue notice to the plaintiff. He also submits that order sheets dtd. 03.05.2001 & 03.07.2001 do not show the purpose of listing of the case before trial court. He submits that because in the civil suit sufficient evidence was already available on record on behalf of the plaintiff, therefore, even in absence of the counsel for the plaintiff, it was for the trial court to pass fresh judgment in the light of judgment and decree of remand on the basis of material available on record on behalf of the plaintiff. With these submissions, learned counsel further submits that both the courts below have

without taking into consideration the order sheets dtd. 03.05.2001 & 03.07.2001 of trial court, committed illegality in dismissing the application under Order 9 Rule 9 CPC as well as the miscellaneous civil appeal filed by the applicant/plaintiff. With these submissions, he prays for allowing the civil revision.

6. Learned counsel for the defendants/respondents supports the impugned orders passed by courts below with the further submissions that upon remand made by first appellate court, the plaintiff himself alongwith the counsel Shri Vimal Shrivastava, appeared before trial court on 10.04.2001, therefore, he was well aware about the proceedings undertaken by trial court including dismissal of suit on 03.07.2001. He further submits that despite knowledge of dismissal of suit on 03.07.2001, the applicant wrongly filed an application on 29.10.2001 under Section 151 CPC complaining non availability of record and on 27.11.2001 also he filed an application under Order 47 Rule 1 CPC, which was withdrawn on 19.08.2002 and on the same date, another application under Order 9 Rule 9 CPC was filed.

7. Learned counsel submits that the plaintiff was well aware about the judgment of remand as well as dismissal of suit on 03.07.2001, therefore, learned courts below have not committed any illegality in dismissing application under Order 9 Rule 9 CPC as well as miscellaneous appeal because the plaintiff has failed to prove sufficient cause for his non appearance on 03.07.2001. Accordingly, he prayed for dismissal of civil revision.

8. Heard learned counsel for the parties and perused the record.

9. Undisputed fact available on record is that original civil suit filed by the plaintiff/applicant was decreed on 11.05.2000 and upon filing civil appeal by the

defendants, matter was remanded by first appellate court to trial court for decision of civil suit afresh. Order sheets dtd. 03.05.2001 & 03.07.2001 show that initially counsel for the plaintiff Shri Vimal Shrivastava, Advocate appeared on behalf of the plaintiff and due to non appearance of the defendants, notice was issued to them, thereupon counsel Shri B.R. Tiwari appeared on their behalf on 03.07.2001. Both the order sheets do not mention the purpose, for which case was listed before trial court, in pursuance of judgment and decree of remand. In my considered opinion, in absence of clear purpose of listing the case, trial court should not have dismissed the civil suit.

10. As has been held in the case of Sushila Narahari & Ors. vs. Nanda Kumar and Another (1996) 5 SCC 529; Malkiat Singh and Another vs. Joginder Singh & Ors. (1998) 2 SCC 206; Lal Devi and another vs. Vaneeta Jain & Ors (2007) 7 SCC 200 & Benibai (Smt.) vs. Smt. Champabai 1996 JLJ 436, upon pleading no instructions by the concerning counsel, it is bounden duty of the court to issue fresh notice to the concerning party. Because the case was at

its preliminary stage and even the court did not fix the case for evidence of the plaintiff or for any other purpose necessary for appearance of the plaintiff, therefore, as the counsel already appearing on behalf of the plaintiff did not appear, it was for trial court to issue notice to the plaintiff for his appearance.

11. Although both the courts below have taken into consideration the cause of non appearane of the plaintiff on 03.07.2001 in the light of submissions made by learned counsel appearing for the defendants/respondents, but both the courts below have failed to take into consideration the order sheets dtd. 03.05.2001 & 03.07.2001 drawn by trial court in their real perspective.

12. In view of the aforesaid and in my considered opinion both the courts below have committed illegality in dismissing the application under Order 9 Rule

9 CPC.

13. Resultantly, by setting aside the impugned orders passed by courts below, the application under Order 9 Rule 9 CPC is hereby allowed with the further direction to trial court to restore the civil suit to its original number and to proceed further with the suit from the stage when it was dismissed on 03.07.2001 in accordance with the law and in accordance with the directions already issued by first appellate court while passing the judgment of remand dtd. 13.03.2001.

14. With the aforesaid, this civil revision succeeds and is hereby allowed.

15. Miscellaneous application(s), pending if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE KPS