IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VINAY SARAF th ON THE 29 OF APRIL, 2024 MISC. PETITION No. 643 of 2024 BETWEEN:-

RAJENDRA KUMAR TIWARI S/O LATE SHRI N.B. TIWARI, AGED ABOUT 53 YEARS, OCCUPATION: RETIRED SERVANT C/26 MAIN ROAD DHANVANTRI NAGAR JABALPUR (MADHYA PRADESH)

.....PETITIONER (BY SHRI A.K. JAIN - ADVOCATE )

AND

1. MAHENDRA KUMAR TIWARI S/O LATE SHRI N.B.

TIWARI, AGED ABOUT 50 YEARS, HOUSE NO. 812 GAUTAM JI KI MADHIYA JABALPUR (MADHYA PRADESH)

2. SMT. USHA UPADHYAY W/O LATE SHRI RAM SAHAY UPADHYAY, AGED ABOUT 55 YEARS, R/O VILLAGE BHADARWARA, TEHSIL SHAHPURA BITAUNI, DISTRICT JABALPUR (MADHYA PRADESH)

3. SMT. MANJU SHARMA W/O SHRI PRABHAT KUMAR SHARMA, AGED ABOUT 45 YEARS, R/O 76, NORTH MILONIGANJ, BADHAIYAPURA DAMOH NAKA, TEHSIL AND DISTRICT JABALPUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI ANAND KUMAR SHARMA - ADVOCATE)

This petition coming on for admission this day, the court passed the following:

ORDER

Petitioner is plaintiff filed a suit for partition and possession in respect of House bearing No. 660/15 on the ground that the house was purchased by his Signature Not Verified Signed by: SHUBHAM th late father and mother and after the death of them, every legal heir has 1/4 share in the house and, therefore, the property be partitioned in the ratio of 1/4- 1/4. However, respondent/defendant No.1 has pleaded that late father of the petitioner executed a Will on 11.05.2010 in his favour therefore, he is the sole owner of the entire property. In the suit, time was granted to the petitioner/plaintiff to adduce the evidence on various occasions and on 16.08.2023, last opportunity was granted on a cost of Rs. 500/- despite that on 06.09.2023 neither plaintiff was present nor any lawyer was present in the Court and considering the fact that case is pending since more than 5 years and sufficient opportunities were already granted to the petitioner to adduce the evidence, the learned trial Court closed the right of the petitioner/plaintiff to adduce the evidence and proceeded ex-parte against the petitioner by fixing the case for defendant evidence.

2. Learned counsel for petitioner submits that the trial Court has committed error in proceeding ex-parte on 06.09.2023 against the petitioner/plaintiff. He submits that when the plaintiff was not present on the date of hearing and failed to produce his evidence, the Court would have decided the suit forthwith or disposed of the suit under Order IX of CPC, but the Court had no authority to proceed ex-parte against the plaintiff. He submits that the plaintiff was cross-examined in the matter and matter was fixed for examination of handwriting expert to prove his opinion/report. He further submits that counsel for the plaintiff intimated the Court at 11:30 AM that expert would not be able to attend the Court and the counsel for the plaintiff prayed for adjournment however, the same was not recorded and later on, at 12:30 PM, the case was called when the plaintiff and his lawyer were not present. Again, Signature Not Verified Signed by: SHUBHAM the case was called after sometime thereafter, 03:00 PM and lastly at 04:45 PM and in the absence of the plaintiff and his counsel, the Court has proceeded ex- parte against the plaintiff and closed the right of the plaintiff to adduce further evidence.

3. Learned counsel for plaintiff submits that the reason for non-

appearance of plaintiff was beyond the control of the plaintiff and one opportunity ought to have been granted to the plaintiff to adduce the evidence of handwriting expert. He prays for setting aside the order dated 06.09.2023.

4. Per contra, learned counsel for defendant/respondent submits that on the last date of hearing, the time was granted to the plaintiff by way of last indulgence upon payment of cost of Rs. 500/- and the same was not paid by the plaintiff therefore, under Section 35B of CPC, the Court was empowered to proceed ex-parte against the plaintiff. He relied upon the judgment of Ap