IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA

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ON THE 18 OF SEPTEMBER, 2025 CIVIL REVISION No. 424 of 2021 SMT. PRASADIBAI AND OTHERS Versus MST. ANNU AND OTHERS Appearance:

Mr. Rohit Bansal - Advocate for applicants.

Mr. Swapnil Sharma - Proxy Counsel on behalf of Mr. Dharmendra Rishishwar - Advocate for respondent Nos. 1 to 3.

ORDER Heard through video conferencing.

This Civil Revision under Section 115 of CPC has been filed against the order dated 15-09-2021 passed by First Civil Judge, Senior Division, Sheopur in MJC No. 01/2018, by which an application filed by applicants under Order 9 Rule 9 CPC (wrongly mentioned as Order 9 Rule 4 CPC in the application) has been rejected.

2. It is the case of applicants/plaintiffs that on 10-03-2011, the trial Court observed that since plaintiffs have not given the list of witnesses, therefore, the case was fixed for 23-03-2011 for recording of plaintiffs' evidence. Neither applicants/plaintiffs nor their witnesses were present on 23-03-2011. Even counsel for applicants/plaintiffs pleaded “no instructions”, and accordingly, the trial Court dismissed the suit on account of absence of plaintiffs.

3. It is submitted by counsel for applicants that once counsel for applicants had pleaded “no instructions,” therefore, applicants were not aware of the fact that Signature Not Verified such a step can be taken by their counsel. Under these circumstances, by relying upon the judgment passed by this Court in the case of Vaianti Bai (Smt.) Vs. Jairam, reported in 2008 (2) M.P. Weekly Note 56 , it is submitted that the trial Court should have issued SPC to plaintiffs, and therefore, it is prayed that dismissal of the suit on account of absence of plaintiffs on 23-03-2011 was illegal. It is further submitted that only eight days prior to filing of application under Order 9 Rule 4 CPC (which should have been under Order 9 Rule 9 CPC), the defendants threatened the applicants that they have won the case, and therefore, they would dispossess the applicants. Accordingly, application under Order 9 Rule 4 CPC (which should have been under Order 9 Rule 9 CPC) was filed on 08- 01-2017. It is further contended by counsel for applicants that since respondents/defendants did not file any written reply to this application filed under Order 9 Rule 4 CPC (which should have been filed under Order 9 Rule 9 CPC), therefore, in the light of judgment passed by this Court in the case of Kher Singh Vs. Phoolchand, reported in 1981 JLJ Short Note 5, the trial Court should have accepted the contentions of applicants.

4. Considering the submissions made by counsel for parties.

Whether the trial Court should have issued the SPC to plaintiffs or not?

5. On 10-03-2011, the trial Court observed that plaintiffs have not given the list of witnesses, and accordingly, fixed the case for 23-03-2011 for recording evidence of plaintiffs and their witnesses. On 23-03-2011, neither plaintiffs nor their witnesses were present. After recording the absence of plaintiffs and their witnesses, the trial Court also observed that counsel for applicants has also pleaded “no instructions.” Ultimately, the case was dismissed on the ground of absence of plaintiffs. Signature Not Verified

6. Now the only question for consideration is as to whether presence of plaintiffs was necessary on 23-03-2011 or not?

7. It is submitted by counsel for applicants that an affidavit under Order 18 Rule 4 CPC could have been filed by their counsel even in absence of plaintiffs.

Therefore, presence of plaintiffs was not required on 23-03-2011.

8. Considered the aforesaid submission made by counsel for applicants.

9. It is not the case of applicants that an affidavit under Order 18 Rule 4 CPC was filed before the trial Court on 23-03-2011. Affidavit under Order 18 Rule 4 CPC is a substitute of examination-in-chief, and it does not mean that witness cannot be cross-examined on the day when an affidavit under Order 18 Rule 4 CPC is filed.