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Madhya Pradesh High Court · body

2025 DIGILAW 322 (MP)

Tej Bahadur Singh v. Jokhai Singh

2025-05-17

DWARKADHISH BANSAL

body2025
ORDER 1. This civil revision has been preferred by the petitioners/plaintiffs challenging the order dated 1.8.2016 passed by District Judge, Sidhi, in misc. civil appeal No.06/2013 affirming the order dated 30.1.2013 passed by Civil Judge Class-I, Majholi, in MJC No.18/2010 whereby plaintiffs’ application under Order IX rule 4 read with section 151 CPC has been dismissed, although rightly treated it to be under Order IX rule 9 CPC. 2. Facts in short, are that the petitioners/plaintiffs had instituted a suit for declaration of title, permanent injunction and alternatively for restoration of possession in respect of agricultural lands against as many as 10 defendants. Upon service of summons, the defendants put in appearance through counsel and vide order dated 27.11.2003, case was posted for written statement for 8.12.2003. As neither the plaintiffs nor their counsel had appeared on 8.12.2003, therefore, trial Court dismissed the suit for want of prosecution although in presence of the defendant 2 and counsel Shri K.L. Dwivedi. 3. For restoration of the suit, an application under Order IX rule 4 read with section 151 CPC supported by affidavit was filed on 1.1.2004 i.e. within a period of 30 days, with the contentions that on 8.12.2003 the case was posted for written statement. On inter alia contentions along with the contention of illness of the plaintiffs, they prayed for restoration of civil suit. 4. Upon service of summons of the said application, the defendants appeared and filed reply to the application and opposed the same without filing any counter affidavit. 5. Thereafter, trial Court without recording evidence proceeded to decide the application and finding the available material to be insufficient for proving illness of plaintiffs as well as other averments relating to non-appearance of the plaintiffs, dismissed the application vide order dated 30.1.2013. Against which the petitioners preferred misc. civil appeal which by the impugned order dated 1.8.2016 was dismissed and order passed by trial Court was affirmed. 6. Against the aforesaid orders passed by Courts below, the petitioners preferred instant civil revision in which all the respondents are served, but nobody is appearing to oppose the prayer for restoration of civil suit. 7. civil appeal which by the impugned order dated 1.8.2016 was dismissed and order passed by trial Court was affirmed. 6. Against the aforesaid orders passed by Courts below, the petitioners preferred instant civil revision in which all the respondents are served, but nobody is appearing to oppose the prayer for restoration of civil suit. 7. Learned counsel for the petitioners submits that in the civil suit despite service of summons and in spite of availing several opportunities, the defendants did not file written statement and on 8.12.2003 case was posted for filing written statement by the defendants but for the reasons best known to the plaintiffs, their duly engaged counsel did not appear and the plaintiffs being ill could not appear. He submits that even though the plaintiffs did not appear, but on 8.12.2003 there was no date of hearing, therefore, neither the plaintiffs were required to remain present nor their suit could have been dismissed for want of prosecution. With these submissions, he prays for allowing the civil revision. 8. Heard learned counsel for the petitioners/plaintiffs and perused the record. 9. Apparently and undisputedly on 8.12.2003, case was posted for filing written statement by the defendants and no written statement was filed by them on 8.12.2003, but due to non-appearance of the plaintiffs and their counsel, the suit was dismissed for want of prosecution. 10. In the case of Satish Saggar v. Managing director, M.P. Industrial Centre Development Corporation and another, 1999 (2) MPLJ 644 , a coordinate Bench of this Court considered the meaning of ‘hearing’ and held as under:- “4. So far as the first two submissions are concerned, they relate to the factor pertaining to the fact and it is not necessary to dilate on them as those facts are not rebutted by the learned counsel for the other side. But so far as the question of non-applicability of the provisions of rule 8 of Order 9 is concerned, the same requires consideration. But so far as the question of non-applicability of the provisions of rule 8 of Order 9 is concerned, the same requires consideration. Rule 8 of Order 9, Civil Procedure Code is as extracted below :- "Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder." It provides for dismissal of the suit when called on for hearing, on the ground that the defendant appears but the plaintiff does not appear. 5. The question is as to what is the procedure followed after the institution of the suit and prior to the stage when the case is called on for hearing. The first stage provided under Order 5 is issuance of summons for making appearance and to answer the allegation made in the plaint on the date specified in the summons and counter claim, if any, to be filed in the written statement or an objection can also be filed, if available to him under the provisions of Order 7, rule 11, Civil Procedure Code. 6. Here in the present case, the service was effected and the defendant appeared but the time was allowed for filing the written statement and for that purpose, the case posted on 29.8.1992. After the written statement is filed, then the stage of filing of the documents comes, as well as the stage for framing of the issues and after framing of the issues, the case is posted for hearing. 7. In the present case, in fact, the case was not posted for hearing and the date 29.8.1992 was not the date of hearing. In view of the above, the order sought to be revised is illegal and without jurisdiction and deserves to be set aside. 8. In view of the above, the revision is allowed. The impugned order dated 14.2.1995 is set aside as well as the order dated 29.8.1992 dismissing the suit for default in appearance. The suit is restored to its original number. 8. In view of the above, the revision is allowed. The impugned order dated 14.2.1995 is set aside as well as the order dated 29.8.1992 dismissing the suit for default in appearance. The suit is restored to its original number. In the facts and circumstances of the case, I make no order as to costs.” 11. In the case of Ramchandra v. Sagarmal, 1988 (2) MPWN 234 , a coordinate Bench of this Court held that the date fixed for filing written statement, is not a date fixed for hearing. At the same time it is also held that date of framing of issues, is first date of hearing. 12. In the case of Roop Narayan v. Shambhoo Lal, 2001 SCC Online Raj 955 = 2002 (2) CivCC 212 , a coordinate Bench of Rajasthan High Court has held that when the case was fixed for filing written statement, which was to be filed by the defendant(s), there was hardly any necessity for the plaintiff himself to be present in Court on the date fixed. 13. In the instant case, apparently on 8.12.2003 the suit was posted for filing written statement by the defendants, therefore, it was not a date of hearing and there was no requirement of the plaintiffs to remain present. 14. It is pertinent to mention here that when trial Court thought fit to decide the application without recording evidence and no counter affidavit was filed by the defendants, it was sufficient to allow the application and to restore the suit, but from the orders passed by Courts below, it is clear that they have made unnecessary exercise and took more than 13 years in deciding such application. 15. As such, in my considered opinion, trial Court had committed illegality in dismissing the suit for want of prosecution and it further committed illegality in dismissing the application under Order IX rule 9 CPC that too without recording any evidence regarding sufficient cause for non-appearance of the plaintiffs. Similarly, appellate Court had also committed illegality in dismissing the misc. civil appeal. 16. Similarly, appellate Court had also committed illegality in dismissing the misc. civil appeal. 16. As a result thereof impugned orders passed by Courts below are set aside and the application filed under Order IX rule 4 (rightly treated by trial Court under Order IX Rule 9 CPC) stands allowed with the direction to trial Court to restore the suit to its original number and to decide the same in accordance with law from the relevant stage. 17. With the aforesaid, this civil revision stands allowed and disposed off. 18. Misc. application(s), pending if any, shall stand closed.