IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE ANAND PATHAK ON THE 5^th OF SEPTEMBER, 2023 MISC. PETITION NO. 4973 of 2023 BETWEEN:-

ANNAD SINGH S/O LATE SHRI BHAROSI, AGED ABOUT 59 YEARS, OCCUPATION: AGRICULTURIST R/O GOSHPURA NO. 1, GWALIOR (MADHYA PRADESH)

…..PETITIONER (BY SHRI R.S. DHAKAD - ADVOCATE)

AND

1. KRISHI UPAJ MANDI SAMITI THROUGH SECRETARY DEVENDRA SINGH JADON S/O SHRI LAL JADON, AGED ABOUT 58 YEARS, OCCUPATION: SECRETARY KRISHI UPAJ MANDI SAMITI LASHKAR GWALIOR R/O KRISHI UPAJ MANDI SAMITI LASHKAR GWALIOR (MADHYA PRADESH)

2. BALKISHAN S/O LATE SHRI BHAROSI, AGED ABOUT

59 YEARS, OCCUPATION: AGRICULTURIST R/O GOSHPURA NO. 1 GWALIOR (MADHYA PRADESH)

3. NARAYAN SINGH S/O LATE SHRI BHAROSI, AGED ABOUT 59 YEARS, OCCUPATION: AGRICULTURIST R/O GOSHOPURA NO. 1, GWALIOR (MADHYA PRADESH)

4. PRAKASH SINGH S/O LATE SHRI BHAROSI, AGED ABOUT 59 YEARS, OCCUPATION: AGRICULTURIST R/O GOSHPURA NO. 1, GWALIOR (MADHYA PRADESH)

5. STATE OF MADHYA PRADESH THROUGH COLLECTOR, DISTRICT GWALIOR (MADHYA PRADESH)

…..RESPONDENTS (DR. SHRI JITENDRA JAIN – ADVOCATE FOR RESPONDENT NO.1, NONE FOR RESPONDENTS NO.2 TO 4 AND SHRI M.S. JADON – GOVERNMENT ADVOCATE FOR RESPONDENT NO.5/STATE.

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

ORDER

1. The present petition is preferred under Article 227 of the Constitution whereby the petitioner/defendant has taken exception to the order dated 08-08-2023 passed by the XIII Civil Judge, Junior Division, Gwalior whereby the application preferred under Order IX rule 7 of CPC at the instance of petitioner/defendant was rejected and the matter was posted for final hearing. Therefore, this petition has been preferred.

2. Precisely stated facts of the case are that on 11-02-2022, Krishi Upaj Mandi Samiti, Lashkar Gwalior (respondent No.1 herein) filed a suit for declaration and permanent injunction on the basis of adverse possession. Notice was issued on 16-02-2021 to the present petitioner and other defendants but the petitioner could not receive the said notice. Thereafter plaintiff filed an application under Order V Rule 20 of CPC which was allowed and defendants were served through publication. Since nobody appeared, therefore, vide order dated 07-

03-2022 they were proceeded ex parte.

3. Evidence of the plaintiff was carried out and thereafter matter was posted for final hearing on 16-12-2022. On that date, Presiding Officer was not available and was transferred, therefore, matter was transferred to another Court. The said Court fixed the date for final hearing on 14-07-2023 and on that date, petitioner moved an application under Order IX Rule 7 CPC and referred the fact that because of non service of notice and ignorance about pending suit, he could not appear in the trial proceedings. Non appearance was bona fide.

4. Respondent No.1 contested the claim so made and submitted that it is a case of delay tactics. The trial Court after considering rival submissions rejected the application preferred under Order IX Rule 7 CPC and posted the matter for hearing, therefore, petitioner is before this Court. He relied upon the Bhanu Kumar Jain Vs. Archana Kumar and another, 2005(3) MPLJ 3.

5. Learned counsel for respondent No.1 opposed the submissions and submitted that since petitioner did not appear, therefore, proceeded ex parte and matter was placed for final hearing. Since Presiding Officer was transferred, therefore, hearing could not take place, however it was reserved for orders. After matter being transferred to another Court, the trial Court posted the matter for final hearing, therefore, it is not the stage where petitioner could have asserted his claim as party defendant for participation in the proceedings. He prayed for dismissal of petition.

6. Heard learned counsel for the parties and perused the documents appended thereto.

7. This is a case where petitioner/defendant