Ilias vs A. Gaffar
2026 Latest Caselaw 337 MP

Madhya Pradesh High Court

Ilias vs A. Gaffar on 14 January, 2026

                                                             1                                CR-751-2025
                             IN     THE      HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                        BEFORE
                                             HON'BLE SHRI JUSTICE VIVEK JAIN
                                                ON THE 14th OF JANUARY, 2026
                                                CIVIL REVISION No. 751 of 2025
                                                       ILIAS AND OTHERS
                                                              Versus
                                                    A. GAFFAR AND OTHERS
                          Appearance:
                                  Shri Jaideep Sirpurkar - Advocate for the petitioner.
                                  Shri Parimal Chaturvedi - Advocate for the respondent No.1.
                                  Shri Amit Mishra - Panel Lawyer for the State.

                                                                 ORDER

By way of the present petition challenge is made to order dated 11.07.2025 passed by the trial Court, whereby the trial Court has allowed the application filed by the respondent plaintiff under Order 9 Rule 9 of C.P.C. The aforesaid application was filed as the suit of the respondent plaintiff was dismissed in terms of Order 9 Rule 8 C.P.C. on 23.12.2024 on account of absence of the plaintiff and his counsel before the trial Court.

2. Counsel for the petitioner defendant has vehemently argued that though the application was filed within limitation on 07.01.2025, but it is a case where the plaintiff was deliberately avoiding the Court and he had no intention to participate in the proceedings. It is contended that on 04.12.2024, the case was fixed for plaintiff evidence, but the plaintiff was absent and application under Order 17 Rule 1 was filed. Similarly, on 11.12.2024 again

2 CR-751-2025 application for adjournment was filed on the ground that the plaintiff is unwell. Thereafter, on 23.12.2024 the plaintiff and his counsel were absent and therefore, this Court proceeded under Order 9 Rule 8 C.P.C. in which no fault could be found. The counsel refers to judgment of this Court in the case of Rama Shankar and others vs. Balak Das, 2013(4) MPLJ 167 to contend that the Court has to see whether party to the suit honestly and sincerely intended to remain present before the Court when the case is called on and does its best to do so. By further referring to judgment of this Court in the case of Shiv Cotex vs. Tirgun Auto Plast Private Limited and others (2011) 9 SCC 678, it is argued that the provisions of Order 17 Rule 1 cannot be misused by the litigants just to get undue leverage during the course of the proceedings and therefore, it is argued that the trial Court ought not to have

allowed the application under Order 9 Rule 9 C.P.C.

3. Per contra, learned counsel for the respondent plaintiff submits that the suit cannot be scuttled for absence of the plaintiff on a single day and even the application under Order 9 Rule 9 C.P.C. was filed within limitation and within 17 days of dismissal of the suit, which was immediately after civil winter vacation.

4. Upon considering the rival submissions, it is seen that though on previous two dates the respondent-plaintiff had taken adjournment as his witnesses were not present, nor the plaintiff himself was present to tender his evidence, and the trial Court had indeed allowed the application under Order 17 Rule 1 C.P.C. and granted opportunity to lead evidence.

5. Thereafter, on 23.12.2024 the plaintiff and his counsel were absent,

3 CR-751-2025 and a reason was assigned in the application under Order 9 Rule 9 CPC that the plaintiff was unwell and his counsel had to go out of town for some personal work.

6. Though it is true that no medical certificate was filed to show that what was the illness with which the plaintiff had suffered, but since it was the absence of the single day, i.e. 23.12.2024, not filing the medical certificate cannot be given undue weightage in favour of the defendants. It is also not in dispute that the plaintiff is a person more than 70 years of age and some inference as to his medical condition and inability to travel to the Court, even if he was not suffering from any serious illness, cant be made. Moreso, the application for restoration under Order 9 Rule 9 was filed within 17 days of the dismissal of the suit.

7. In view of the aforesaid, this Court is of the considered opinion that the trial Court has not erred in allowing the application under Order 9 Rule 9 C.P.C. The Courts should endevour to decide the litigation on merits rather than to scuttle it on technical grounds.

8. Consequently, the Revision fails and is dismissed.

(VIVEK JAIN) JUDGE

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