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2018 DIGILAW 364 (MP)

Ankur Sharma v. Banmali Sharma

2018-03-27

ANAND PATHAK

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JUDGMENT : Anand Pathak, J. 1. Shri Abhishek Bindal, learned counsel for the petitioner. Shri Anand Bhardwaj, learned counsel for respondent No. Shri A.K. Nirankari, learned GA for respondent no. 12/State. With consent, heard finally. 2. Petitioner/defendant No. 9 has filed this petition under Article 227 of the Constitution of India against the orders dated 3.5.2017 and 19.7.2017 passed by First Civil Judge, Class I Shivpuri in Civil Suit No. 89-A/2015. 3. According to learned counsel for the petitioner, respondent No. 1-plaintiff filed a suit for declaration and permanent injunction for cancellation of sale deed against the present petitioner and other co-defendants. Petitioner filed written statement denying the plaint allegations. Trial Court on the basis of pleadings of parties, framed issues and fixed the case for recording of plaintiff's evidence. On 3.5.2017, the case was fixed for recording of evidence of plaintiff. But as the counsel for the petitioner was busy in other Court he could not appear before the trial court, therefore, the trial court proceeded ex-parte against the petitioner. Immediately thereafter, on 4.5.2017, he moved an application for setting aside the ex-parte order, but by order dated 19.7.2017 same has been dismissed. 4. According to learned counsel for the petitioner, looking to the fact that petitioner was very much present on the date case was fixed for plaintiff's evidence till 2.30 pm and the fact that counsel for the petitioner was busy in some other Court, trial Court ought to have allowed the application preferred by the petitioner thereby setting aside the ex-parte order. 5. Counsel for the respondent No. 1/plaintiff on the other hand supported the impugned orders. He submits that on 3.5.2017, the case was called for three times, but neither petitioner nor his counsel has appeared, therefore, the trial court proceeded ex-parte against the petitioner and looking to conduct of petitioner his application for setting aside ex-parte proceedings has been rejected. He relied upon the decisions of Hon'ble Apex Court in the matter of Noor Mohammed vs. Jethanand and Another, AIR 2013 SC 1217 as well as of this Court in the matter of Ratiram vs. Laxmi Narayan, 1986 (1) MPWN 134 . Heard. 6. So far as order dated 3.5.2017 is concerned, it is apparent that petitioner had the knowledge of the date fixed for evidence. Heard. 6. So far as order dated 3.5.2017 is concerned, it is apparent that petitioner had the knowledge of the date fixed for evidence. On the said date, according to learned counsel for the petitioner, counsel for the petitioner could not cause his appearance as he was busy in some Court and therefore, trial Court proceeded ex-parte against the petitioner. 7. So far as order passed by trial Court dated 19.7.2017 is concerned, here it is alleged that petitioner was very much present in the Court room on 3.5.2017 up till 1.30 pm and thereafter he left the Court on account of stomach pain and as counsel for the petitioner was busy in some other Court, he was proceeded ex-parte. It is also true that immediately thereafter, on 4.5.2017, petitioner moved an application under Order IX Rule 7 CPC for setting aside order dated 3.5.2017. Therefore, no delay has been caused in filing the application. Similarly, fact situation of the case reveals that plaintiff has filed the suit against the present petitioner and other co- defendants for declaration and permanent injunction as well as cancellation of sale deed against the petitioner. From the fact situation of the case, it appears that trial Court although has not caused any illegality but adopted hyper technical approach while deciding application under Order IX Rule 7 CPC. It is also settled in law that for the fault of counsel, the litigant should not be made to suffer. Bodh Raj and Others vs. Smt. Rano Devi, AIR 2001 SC 2497 and Dindayal Bansal vs. Gwalior Nagar Tatha Gram Vikas Pradhikaran, 2007 (5) MPHT 470 . 8. Considering the judgment rendered by Hon'ble Apex Court in the M.K. Prasad vs. P. Arumugam, 2007 (5) MPHT 470 : AIR 2001 SC 2497 and the fact situation, sufficient grounds exist for setting aside the impugned orders dated 3.5.2017 and 19.7.2017, but by suitably compensating the respondent/plaintiff in this regard. 9. Resultantly, impugned orders dated 3.5.2017 and 19.7.2017 are hereby set aside subject to payment of cost of Rs. 10,000/- to be paid by petitioner/defendant to respondent/plaintiff on next date of hearing before the trial Court. After appearance, petitioner would have limited opportunity in a manner that on the next date of hearing petitioner would have to cross-examine plaintiff or its witnesses and thereafter he would have to lead his evidence without any adjournments. 10,000/- to be paid by petitioner/defendant to respondent/plaintiff on next date of hearing before the trial Court. After appearance, petitioner would have limited opportunity in a manner that on the next date of hearing petitioner would have to cross-examine plaintiff or its witnesses and thereafter he would have to lead his evidence without any adjournments. Any adjournment sought by petitioner/defendant would disentitle him to remain in fray and trial Court may proceed accordingly in case of any default on behalf of petitioner/defendant. Matter would restart from the stage where defendant was left out from the litigation. Parties to appear before the trial Court on 18th April, 2018. 10. With the aforesaid observation, petition stands allowed and disposed of.