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2025 Supreme(Online)(CHH) 3216
2025:CGHC:581 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 1197 of 2024
1. Hansraj Peshwani S/o Late Shri Gorbomal @ Gokhumal Peshwani Aged About 65 Years R/o- Sardar Patel Nagar Ward, Behind Ganj, Kharsiya, Tahsil- Kharsiya, District Raigarh, Chhattisgarh
2. Kundan Peshwani S/o- Late Shri Gorbomal @ Gokhumal Peshwani Aged About 56 Years R/o- Sardar Patel Nagar Ward, Behind Ganj, Kharsiya, Tahsil- Kharsiya, District Raigarh, Chhattisgarh. Through General Power Off Attorney Holder Avinash Peshwani, Aged About 31 Years (Wrongly Mentioned 51 Years In Impugned Order), S/o- Shri Suresh Peshwani, R/o- Rajkishore Nagar Bilaspur, Tahsil And District- Bilaspur, Chhattisgarh, Mo.
No. 7489999940 ... Petitioner(s)
versus
1. Smt. Rashmi Sao W/o Ambikesh Dutta Sao Aged About 55 Years R/o-
Sarkho, Tahsil And District- Janjgir-Champa (C.G.) At Present R/o- Block No. 3, Flat No. 201, Ramkrishna Enclave Bilaspur, Tahsil And District Bilaspur (Chhattisgarh)
2. Totaram S/o Gelaram Aged About 70 Years R/o- Ameri, Tahsil- Takhatpur, District- Bilaspur (Chhattisgarh)
3. Smt. Meera Bai W/o- Late Fattechand Peshwani Aged About 55 Years R/o Ganj Bazar Kharsiya, Tahsil- Kharsiya, District Raigarh (Chhattisgarh)
4. Rajesh Kumar Peshwani S/o- Late Fattechand Peshwani Aged About 36 Years R/o- Ganj Bazar Kharsiya, Tahsil- Kharsiya, District Raigarh (Chhattisgarh)
5. Smt. Reena Makhija W/o- Lalchand Makhija Aged About 34 Years R/o-
Torwa Naka Chowk Bilaspur, Tahsil And District Bilaspur, Chhattisgarh
6. Smt. Ritu Makhija (Wrongly Mentioned Ritri Makhija) W/o- Gopal Das Sindhi (Wrongly Mentioned Father Of Gopal Das Sindhi In Impugned Order) Aged About 32 Years R/o- Sindhi Colony Raigarh, Tahsil And District- Raigarh, Chhattisgarh
7. Collector Bilaspur District Bilaspur (Chhattisgarh)
... Respondent(s)
(Cause Title is taken from Case Information System)
For Petitioners : Mr. Ratnesh Kumar Agrawal, Advocate For State : Mr. Vinay Pandey, Dy. Advocate General Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
06 .01.2025
1. The petitioners have challenged the order passed by the learned IInd Additional District Judge, Bilaspur in Miscellaneous Civil Appeal No. 10/2022 dated 16.10.2024, whereby the appeal preferred by the petitioners was dismissed that was preferred to restore MJC No. 6/2017 which was dismissed by the learned Civil Judge, Junior Division, Takhatpur, vide order dated 02.11.2021.
2. The facts of the present case are that respondent No. 1/plaintiff filed a Civil Suit for declaration of the title and permanent injunction over survey No. 448/4, new survey numbers 448/31 admeasuring 0.03 acre and survey No. 448/32 admeasuring 0.09 acre, total admeasuring 0.12 acre situated at Ameri, District Bilaspur. The petitioners who were defendants in that Civil suit, filed a written statement as well as counterclaim on 05.12.2008. Thereafter, the petitioners never participated in the Civil Suit and the same was ex-parte decreed in favour of the plaintiff vide judgment and decree dated 14.02.2017. The petitioners preferred an application under Order 9 Rule 13 of CPC for setting-aside ex-parte decree on 22.06.2017 and the same was dismissed for want of prosecution on 15.11.2017. The petitioners moved an application under Order 9 Rule 9 of CPC for restoration of MJC No. 6/2017 and the same was registered as MJC No. 15/2017.
3. The learned trial Court vide order dated 02.11.2021 dismissed MJC No.
15/2017 on merits. The petitioners preferred Miscellaneous Appeal No.
10/2022 and the same was also dismissed on 16.10.2024.
4. Learned counsel appearing for the petitioners would submit that the petitioners were not communicated by their counsels when the Civil Suit was pending; therefore, they could not appear before the learned trial Court. He would further submit that when the petitioners got information with regard to the judgment in the Civil Suit, they preferred an application under Order 9 Rule 13 of CPC. He would also submit that as an incorrect date was recorded by the counsel of the petitioners, therefore, he could not appear on the date of the hearing and the application for setting-aside ex- parte decree was also dismissed for want of prosecution. It is contended that an application under Order 9 Rule 9 of CPC was moved for restoration of the application under Order 9 Rule 13 of CPC and the same was dismissed. It is further contended that the Miscellaneous Appeal was also dismissed. It is stated that the learned appellate Court ought to have considered the fact that the case has not been decided on merits;
therefore, one opportunity should have been granted to the petitioners.
5. On the other hand, Mr. Vinay Pandey, Deputy Advocate General, appearing for the State would oppose. He would submit that despite service of notice and after the filing of the written statement the petitioners remained ex- parte in the Civil Suit. He would further submit that the judgment and decree was passed against the petitioners by the learned trial Court. He would also submit that an application under Order 9 Rule 13 of CPC was moved and the same was dismissed for want of prosecution. It is contended that the petitioners were not vigilant in pursuing the matter, and therefore, the learned Courts below rightly rejected the application for restoration.
6. I have heard learned counsel for the parties and perused the documents placed on record.
7. The Hon'ble Supreme Court in the matter of Hameed Joharan (DEAD)
and others vs. Abdul Salam (DEAD) and others reported in (2001) 7 SCC 573 has held that equity confers only the vigilant and not an indolent litigant, the relevant para 14, reproduced herein-below :-
“14. Needless to record that engrossment of stamped paper would undoubtedly render the decree executable but that does not mean and imply however, that the enforceability of the decree would remain suspended until furnishing of the stamped paper-this is opposed to the fundamental principle of which the statutes of limitation are founded. It cannot, b
