IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH th ON THE 4 OF SEPTEMBER, 2023 MISC. APPEAL No. 1760 of 2017 BETWEEN:-

RAMHET AGRAWAL S/O LATE SHRI SHANKARLAL AGRAWAL, AGED ABOUT 60 YEARS, 4-C, KASTURBA NAGAR, BHOPAL (MADHYA PRADESH)

.....APPELLANT (BY SHRI SAKET MALIK-PROXY COUNSEL ON BEHALF OF SHRI K.S.JHA, ADVOCATE )

AND

1. ASHOK KUMAR GEHANI S/O SHRI PERMANAND GEHANI, AGED ABOUT 51 YEARS, R/O B-57 KAMLA NAGAR BHOPAL (MADHYA PRADESH)

2. KU. HEMLATA GEHANI D/O SHRI PERMANAND GEHANI, R/O B-57, KAMLA NAGAR, BHOPAL (MADHYA PRADESH)

3. DR. KAILSH AGRAWAL S/O LATE SHRI BHAGWANDAS, AGED ABOUT 68 YEARS, BASANT BHANWAR, NURSINGH HOME SEHORE (MADHYA PRADESH)

.....RESPONDENTS (RESPONDENT NO.1 & 2 BY SHRI ASHISH GIRI- ADVOCATE )

(RESPONDENT NO.3 BY SHRI ROHIT PALI- ADVOCATE)

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

ORDER

This Miscellaneous Appeal under Order 43 Rule 1( C) of the Code of Civil Procedure has been filed by the appellant/plaintiff against order dated 12.5.2017 passed by the Fifth Additional District Judge, Bhopal in MJC Signature Not Verified Signed by: RAJESH No.92/2010.

2. Facts of the case, in brief, are that appellant/plaintiff filed a civil suit for declaration of sale deed dated 07.5.2004 executed by respondent/defendant No.3 in favour of respondents/defendants No.1 & 2 in respect of suit property as null and void. The respondents/defendants on receipt of notice, contested the suit. On 08.4.2009 the suit was listed for consideration of application under Order 26 Rule 9 CPC. But, the appellant/plaintiff suddenly fell ill due to viral fever and his counsel had gone to Guwahati for some personal work and since there was lack of communication between appellant and his counsel, therefore no one could appear before the Court, and accordingly the suit came to be dismissed in default. On 21.4.2009 the application under Order 9 Rule 9 CPC was filed by plaintiff showing the cause for not appearing before the Court.

The same was dismissed by the impugned order. Hence, this appeal.

3. Learned counsel for the appellant submitted that court below took very hyper technical view while rejecting the application under Order 9 Rule 9 of CPC and in ignoring the sufficient cause stated therein. Therefore, suit ought to have been restored by the court below and hence, this Court may restore the suit.

4. Learned counsel for the respondent has supported the order passed by the court below and strongly opposed restoration of suit. He further submits if this Court eventually arrives at a conclusion to restore the suit then heavy cost be imposed on the appellant as the respondents/defendants have suffered immensely.

5. After hearing the learned counsel for the parties and perusing the record this Court finds that there was sufficient and proper cause for non appearance of plaintiff and the learned court below has taken hyper technical Signature Not Verified Signed by: RAJESH view of the matter and liberal approach ought to have been adopted in the interest of justice and the matter should have been heard on merits after allowing the application.

6. Accordingly, the impugned order is set aside. This appeal is allowed subject to appellant's paying Rs.6000/- before the trial Court to the defendant and additionally on appellant's depositing Rs.2000/- in the District Legal Services Authority, Bhopal within 15 days from today, the suit be restored to it original number. It is made clear if the appellant fails to comply with the above order, the court below may pass appropriate order. With a view to save the time, both the parties undertake to appear before the concerned court on

19.9.2023.

7. It would be needless to state that since the matter is very old, the court below shall make endeavour to conclude the suit expeditiously.

8. With the aforesaid observation and direction the appeal stands allowed.

(AVANINDRA KUMAR SINGH)

JUDGE RM Signature Not Verified Signed by: RAJESH