Advocates:
['DEVESH G KELA', '', 'KRIPESH G KELA', 'ALI ASGAR', 'Chandrashekhar Kaushik']

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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Misc.Appeal No. 77 of 2019

Reserved on 02/09/2021

Pronounced on 08/09/2021

• Pawan Kumar Agrawal S/o - Late Bisan Swaroop Agrawal Aged About

61 Years R/o - Juni Line, In Front Of Saraswati Press Bilaspur, Tahsil

And District Bilaspur Chhattisgarh

---- Appellant/Plaintiff

Versus

1. Sushil Kumar Sarthi S/o - Late Manohar Lal Sarthi,

2. Smt. Radhabai W/o - Late Manohar Lal Sarthi,

3. Jawahar Lal Sarthi S/o - Late Manohar Lal Sarthi,

4. Hira Lal Sarthi S/o - Late Manohar Lal Sarthi,

5. Satroopa Sarthi D/o - Late Manohar Lal Sarthi,

6. Sarita Sarthi D/o - Late Manohar Lal Sarthi,

Res. 01 to 06 R/o - Village Bodari, Near Bodari School, Post Office-

Chakarbhatha, Tahsil-Bilha, District Bilaspur Chhattisgarh.

7. Mahavir Prasad Ojha S/o Shri Shivnath Ojha, Aged About 40 Years

Occupation-Business R/o Balram Talkies Road Bilaspur, Tahsil And

District Bilaspur Chhattisgarh

---- Respondents/Defendants

For Appellant

:

Shri Devesh G. Kela, Advocate

For Respondent Nos.1 to 6

:

None, though served

For Respondent No.7

:

Shri Ali Asgar, Advocate

Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal

C A V Order

1. This Miscellaneous Appeal has been preferred by the Plaintiff/Appellant

under Order 43 Rule 1(c) of the Code of Civil Procedure, 1908

(hereinafter referred to as the 'CPC') questioning the legality and

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propriety of the order dated 11.7.2019 passed in Misc. Civil Suit

No.471/2017, whereby the learned Court below has refused to restore

the suit to its original number while rejecting his application filed under

Order 9 Rule 9 read with Section 151 of the CPC. Parties to this appeal

shall be referred hereinafter as per their description before the Court

below.

2. From perusal of the record, it appears that the Plaintiff's suit for

specific performance of contract based upon an agreement to sale

dated 30.7.2004 purported to have been executed in his favour by one

Manohar Lal Sarthi, was dismissed for non-prosecution on 15.11.2017.

An application for its restoration was made by him under Order 9 Rule

9 read with Section 151 of CPC by submitting, inter alia, that his health

was not well since 13.11.2017, and therefore, he could not appear on

15.11.2017 when the matter was fixed for his evidence, nor he could

have informed his counsel for his inability to attend the Court. In

support, he has submitted a medical certificate issued by Dr. Prashant

Kumar Tiwari on 13.11.2017, who advised him to take bed rest upto

18.11.2017.

3. The reasons assigned in the aforesaid application have, however, been

denied by the Defendants saying that the reasons as assigned for his

non-appearance on the said date are false one, and therefore, the

application deserves to be rejected.

4. The Court below, after considering the aforesaid contention of the

parties, observed that although the Plaintiff was suffering from viral

fever and was advised to take bed rest upto 18.11.2017, but,

nevertheless, since he was not seriously ill, as such, it cannot be said

that he was not in a position to inform his counsel or was unable to

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move and thereby observed further while referring to the earlier order

sheets that despite providing sufficient and last opportunity being given

for recording his evidence, the Plaintiff has failed to appear on

15.11.2017. In view of that, the reasons assigned for his non-

appearance on the said date, cannot be said to be a genuine one and

accordingly refused to restore the suit to its original number. This is the

order which has been impugned by way of this appeal.

5. Learned counsel for the Appellant/Plaintiff submits that the Court below

has committed an illegality in rejecting the said application on finding

that the reasons assigned by the Plaintiff for his non-appearance on

15.11.2017 were not the sufficient. While inviting attention towards the

medical certificate issued on 13.11.2017, it is contende