Research › Search › Judgment

Chhattisgarh High Court · body

2010 DIGILAW 113 (CHH)

Ayodhya Prasad Dubey v. Goverdhan Prasad Agrawal

2010-04-19

N.K.AGARWAL

body2010
ORDER N.K. Agarwal, J. 1. Legality and propriety of order dated 18.01.2010, passed by the Civil Judge, Class II, Bilha, Distt. Bilaspur, is under assail in the instant revision. 2. The brief facts of the case as under: (a) The Applicant/Plaintiff instituted a suit against the non-Applicants claiming relief of declaration, permanent injunction and in the alternative of possession which was registered on 30.05.05. (b) The case was transferred as per administrative order of District Judge, Bilaspur to the court of Civil Judge, Class II, Bilha, Distt. Bilaspur. (c) Undisputedly, notice of such transfer has not been given to the non-Applicants. It appears from the order sheet dated 23.07.07 the case was not dismissed in the absence of Plaintiff or his counsel on that date. (d) On 28.07.07, it appears one Shri Amit Verma, Advocate, appeared on behalf of non-Applicant No. 1 by filing memo of appearance and prayed time for filing Vakalatnama in the matter. (e) Undisputedly, Vakalatnama has not been filed and on 03.07.2008, non Applicant No. 1 was proceeded ex parte and thereafter on 05.01.2009 ex parte decree has been passed. (f) On 15.06.2009. non Applicant No. 1 filed an application under 9 Rule 13 of Code of Civil Procedure alongwith application under Section 5 of Limitation Act for condoning delay. (g) The case putforth by non Applicant No. 1 for condoning delay is that no notice has been given of transfer of the case from Bilaspur to Bilha court (h) Both the parties led their evidence. (i) The trial court, on appreciation of evidence led by the parties, material placed and submissions made, held non Applicant No. 1 succeeded in explaining the cause of delay in filing the application for setting aside the ex parte decree and condoned the delay. 3. Shri Sanjay K Agrawal, learned Counsel appearing for the Applicant would contend that Shri Amit Verma infact appeared on behalf of non Applicant No. 1 on memo of appearance and therefore, it cannot be said that the non Applicant No. 1 was not aware about the pendency of the case before the Bilha court. 3. Shri Sanjay K Agrawal, learned Counsel appearing for the Applicant would contend that Shri Amit Verma infact appeared on behalf of non Applicant No. 1 on memo of appearance and therefore, it cannot be said that the non Applicant No. 1 was not aware about the pendency of the case before the Bilha court. He would further contend that it is not requirement of law to give notice to the parties when the case is transferred from one court to another and the trial court ought to have decided both the applications together and thus the trial court has committed jurisdictional error in condoning the delay and passing the order impugned. 4. On the other hand, Shri Amit Kumar and Shri Devendra Shukla, learned Counsel appearing for the Respondent No. 1 & 2 respectively supported the order and submitted that in the facts and circumstances of the case, the trial court has rightly allowed the application and condoned the delay in filing application under Order 9 Rule 13 of Code of Civil Procedure and the order deserves to be upheld. 5. I have heard the counsel appearing for the parties, perused the order impugned and documents placed on record by the Applicant. 6. The trial court has passed the order on appreciation of material placed and evidence led by the parties. The concurrent findings recorded by both the courts below unless are based on no evidence or are perverse, the same cannot be disturbed by this Court under its revisional jurisdiction under Section 115 of Code of Civil Procedure. It is trite law that while condoning the delay, the approach of court should liberal. Here in the instant case, undisputedly, the case has been transferred from one court to another without giving any intimation therefore to the non Applicant No. 1. It is also not a case that the non Applicant No. 1 has given power to Shri Amit Verma to appear on his behalf before the Bilha court. In such situation, if the delay application is allowed, it cannot be said that the trial court has acted without jurisdiction or in excess of jurisdiction. 7. In view of above, since no jurisdictional illegality has been pointed out by the Applicant, in the considered opinion of this Court, the revision being devoid of substance is liable to be and is hereby dismissed. No order as to costs.