Chattisgarh High Court
Bhagwat Chandrakar vs Mohanlal Chandrakar on 7 February, 2022
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WP227 No. 398 of 2019
Bhagwat Chandrakar, S/o Late Rampyare Chandrakar,
Aged About 57 Years, Through The Power of Attorney
Holder Luv Chandrakar, S/o Bhagwat Chandrakar, R/o
Brahman Para, Kurud, Tahsil Kurud, District Dhamatari,
Chhattisgarh.
---- Petitioner
Versus
1. Mohanlal Chandrakar, S/o Late Vishnu Prasad
Chandrakar, Aged About 62 Years
2. Smt. Lalita Chandrakar, W/o Late Kaushal Prasad
Chandrakar, Aged About 45 Years
3. Ku. Dharini Chandrakar, D/o Late Kaushal Prasad
Chandrakar, Aged About 25 Years
4. Ku. Bhumika Chandrakar, D/o Late Kaushal Prasad
Chandrakar, Aged About 21 Years
5. Ku. Himani Chandrakar, D/o Late Kaushal Prasad
Chandrakar, Aged About 21 Years
6. (Deleted) Saket Chandrakar (died) as per Hon'ble Court
order dated 14-01-2022.
7. Smt. Rampyari Chandrakar, W/o Late Vishnu
Chandrakar,
Respondents No.1 to 7 R/o Brahmanpara, Kurud, Tahsil
Kurud, District Dhamtari, Chhattisgarh.
8. State of Chhattisgarh, Through Collector, District
Dhamtari, Chhattisgarh.
---- Respondents
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For Petitioner : Mr. Prafull N. Bharat, Sr. Advocate with Mr. Mayank Chandrakar, Advocate For respondents No.1 to 5: Mr. Ritesh Verma, Advocate &7 For Respondent No.8 : Mr. Shakti Singh Thakur, P.L.
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(Proceedings through Video Conferencing) Hon'ble Shri Justice Parth Prateem Sahu Order on Board 07.02.2022
1. Petitioner has preferred this writ petition assailing impugned order dated 08.02.2019 passed by Additional District Judge, Camp Court, Kurud, District Dhamtari (C.G.) in Misc. Civil 2 Appeal No.13 of 2017 whereby learned Additional District Judge dismissed the miscellaneous appeal.
2. Facts of the case in nutshell are that petitioner/plaintiff filed a suit for declaration of title and permanent injunction along with an application for grant of temporary injunction. Upon hearing application for grant of temporary injunction, it was dismissed by the trial Court, which was put to challenge in an appeal under Order 43 of Code of Civil Procedure, 1908 (in short 'CPC'). Learned counsel for petitioner/plaintiff appeared before Additional District Judge, Dhamtari to pursue miscellaneous appeal, where it was informed by learned counsel for the respondents/defendants that civil suit itself was dismissed on 23.06.2014 for want of prosecution. Thereafter, petitioner filed an application under Order 9 Rule 9 of CPC for restoration of suit on the ground that plaintiff became seriously ill and suffered partial paralysis. Upon hearing the parties, trial Court allowed application under Order 9 Rule 9 of CPC. Order passed in application under Order 9 Rule 9 of CPC was challenged by respondents before the High Court in civil revision, which was allowed on the ground that application under Order 9 Rule 9 of CPC was filed with delay, but application under Section 5 of the Limitation Act for condonation of delay was not filed, hence, trial Court erred in allowing main application under Order 9 Rule 9 of CPC without condoning delay to be erroneous and remanded back the case to trial Court. After receiving case 3 back on remand by trial Court, petitioner submitted an application under Section 5 of Limitation Act in support of application filed under Order 9 Rule 9 of CPC. Learned trial Court upon considering the grounds raised in application under Order 9 Rule 9 of CPC, application under Section 5 of Limitation Act as well as evidence brought on record by petitioner and hearing the respective parties, dismissed application under Order 9 Rule 9 of CPC observing that there is contradictory statement between plaintiff and his power attorney holder. Medical documents with respect to treatment as pleaded is not placed on record and there is no satisfactory explanation for delay in filing application under Order 9 Rule 9 of CPC. Order passed by trial Court on 13.10.2017 was put to challenge in miscellaneous appeal before Additional District Judge, Camp Court, Kurud, District Dhamtari under Order 43 Rule 1 (c) of the CPC, which also came to be dismissed by impugned order.
3. Mr. Prafull N. Bharat, learned senior counsel for the petitioner would submit that petitioner filed suit for declaration of title and permanent injunction over the disputed land, measuring about 18.64 Acres. Petitioner/plaintiff is an adopted son of Late Rampyare Chandrakar. After death of Rampyare Chandrakar, he moved an application for mutating his name in revenue records before Tahsildar, which was allowed, but when it was challenged by defendants before the Sub Divisional Officer, he set aside the order of Tahsildar and 4 remitted back the case for considering afresh to the Court of Tahsildar. After passing an order by Sub Divisional Officer, plaintiff filed civil suit. He submits that suit was filed by an Advocate, who was appearing, on the date fixed i.e. 23.06.2014, the case was posted for hearing on an application under Order 6 Rule 17 of CPC. On the said date, presence of plaintiff was not necessary, but it is to be argued by counsel engaged by him. He submits that as plaintiff himself was suffering with medical ailment as he suffered partial paralysis, he could not appear nor the power of attorney holder (his son) appeared before trial Court. It is argued that as plaintiff was suffering with ailment, took treatment from different hospitals, therefore, they were not aware with respect to proceedings after 23.06.2014. When plaintiff approached his counsel for inquiring the status of revenue proceedings before Tahsildar on 07.12.2014, on that date, it came to his knowledge that civil suit was dismissed for want of prosecution. Thereafter, application was immediately filed without any further delay. He also argued that trial Court and the Appellate Court have considered that in proceedings pending before Appellate Court in an appeal challenging an order of temporary injunction, defendants informed the Appellant Court on 12.09.2014 that suit itself is dismissed, where counsel for petitioner was present. Taking note of above submission, appeal also came to be dismissed. This fact was also not within the knowledge of plaintiff. He 5 contended that even if there is some contradictory statement in evidence of plaintiff as well as power of attorney holder, then also considering the period i.e. delay of 5 months in filing application under Order 9 Rule 9 of CPC, learned Courts below ought to have considered the application for condonation of delay in an objective manner. He submits that property involved in suit is an immovable property, measuring about 18.64 Acres of land, hence, opportunity ought to have been granted by Courts below to plaintiff/petitioner for contesting his case on merits instead of dismissing his suit on technical ground. In support of his contention, he places reliance upon the judgment of Hon'ble Supreme Court in S. Ganesharaju (Dead) Through LRs. and Another v. Narasamma (Dead) Through LRs. and Others reported in (2013) 11 SCC 341, particularly, paragraph-11.
4. Per contra, Mr. Ritesh Verma, learned counsel for respondents No. 1 to 5 and 7 opposes the submissions of learned senior counsel for petitioner and would submit that petition filed under Article 227 of Constitution of India, cannot be heard as an appeal. He submits that trial Court as well as Appellate Court have considered the grounds raised by petitioner/plaintiff in his application under Section 5 of Limitation Act for condoning delay in filing application for restoration of suit minutely and arrived at a categoric finding that reason assigned for condoning delay to be not satisfactory. Entire supporting documents are not placed on 6 record and there is contradiction in statement of plaintiff as well as his power of attorney holder. The intention of plaintiff is only to delay the trial, hence, impugned order does not call for any interference. He read over the relevant paragraphs of order passed by trial Court as well as Appellate Court in support of his contention. He submits that jurisdiction under Article 227 of Constitution of India cannot be exercised as an Appellate Court and order challenged in writ petition filed under Article 227 of Constitution of India, can be interfered only when there is manifest miscarriage of justice. He places reliance upon the judgment of Hon'ble Supreme Court in State Bank of India & Ors. v. Ramesh Dinkar Punde reported in 2006 AIR SCW 5457 and Radhey Shyam & Anr. v. Chhabi Nath & Ors. reported in 2009 AIR SCW 4006.
5. I have heard learned counsel for the parties and also perused the documents filed along with writ petition.
6. Admittedly, petitioner/plaintiff filed a civil suit seeking declaration of title and permanent injunction over suit property, which is immovable agricultural property stating that he is adopted son of original owner. Land involved in suit is measuring 18.64 Acres. Counsel for respondents argued that suit was filed by plaintiff through power of attorney holder, but perusal of Annexure P/3, at page No.26, copy of civil suit, does not support the contention. In cause-title of plaint, it only mentions that Bhagwat Chadrakar alias Bhagwati 7 Chandrakar to be the plaintiff, hence, submission of counsel for respondents that suit is filed through power of attorney is not correct, as also the submission that when the suit is filed through power of attorney, plaintiff is not required to appear before the Court. Learned trial Court in its order considered that plaintiff in support of his application under Order 9 Rule 9 of CPC as well as application under Section 5 of Limitation Act has filed some medical documents. Medical documents are available in records of Appellate Court in Miscellaneous Appeal No. 13 of 2017 and also available in writ petition. The medical prescription of Vaishnav Hospital shows that he approached the doctor on 05.05.2014 initially and thereafter, it continued till 06.12.2014. Medical prescription mentions that plaintiff suffered paralysis on right half. True, it is that, plaintiff has not filed medical prescription or documents of other hospitals as pleaded in application under Order 9 Rule 9 of CPC or Section 5 of Limitation Act, but taking into consideration the medical prescriptions available on record, submission of learned counsel for petitioner and ground raised before Courts below that petitioner was suffering with medical ailment cannot be ignored. Even otherwise as pointed out by counsel for the petitioner and not disputed by counsel for respondents that date fixed before trial Court on 23.06.2014 is with respect to hearing on application for amendment only. The case was neither fixed for recording of evidence nor any observation was made by Courts below 8 that plaintiff or his counsel is continuously absent on number of hearings. There should be liberal approach by th Courts at the time of consideration of application for condonation of delay so as to make the party to suit to contest the case on merits when delay is not inordinate, Hon'ble Supreme Court in S. Ganesharaju (supra) while considering the application for condonation of delay, held as under :-
"12. The expression "sufficient cause" as appearing in Section 5 of the Limitation Act, 1963, has to be given a liberal construction so as to advance substantial justice. Unless the respondents are able to show mala fides in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by."
7. From the proceedings placed on record in writ petition as well as available in records of Appellate Court, it is apparent that application under Order 9 Rule 9 of CPC is filed after 5 months of dismissal of civil suit for want of prosecution and in view of ground taken by plaintiff that he was suffering with medical ailment i.e. half paralysis, delay in filing the application cannot be treated to be an inordinate delay, no malafide is pleaded nor argued by counsel for respondent, 9 hence, in the opinion of this Court, learned trial Court as well as Appellate Court erred in dismissing the appliction under Order 9 Rule 9 of CPC as well as appeal. Courts below ought to have considered the application for condonation of delay liberally considering the subject matter of suit, otherwise, plaintiff would be deprived of contesting his suit involving immovable property of more than 18 Acres without deciding the lis on merits. Even if delay is condoned, it will not cause injustice to respondents/defendants as he is having the opportunity to contest the case on merits by way filing written statement and leading evidence in support of their claim.
8. The judgment relied upon by counsel for respondents/ defendents in Radhey Shyam (supra) was dealing with rejection of application for grant of temporary injunction and in that circumstances, Hon'ble Supreme Court has passed an aforementioned order. In Ramesh Dinkar Punde (supra) Hon'ble Supreme Court was considering the jurisdiction exercised by High Court considering the issue of punishment after departmental inquiry, hence, no benefit can be extended to defendants of aforementioned dictum of Hon'ble Supreme Court as it is on different facts.
9. In view of foregoing discussions and considering the ruling of Hon'ble Supreme Court in S. Ganesharaju (supra) as also considering the subject matter of suit where immovable property, measuring 18.64 Acres, is involved and civil suit 10 was at preliminary stage, if opportunity to contest the case on merits is not provided to the plaintiff, it will cause manifest injustice to him.
10. In view of above discussions, writ petition is allowed, impugned order dated 08.02.2019 passed by Additional District Judge, Camp Court, Kurud, District Dhamtari (C.G.) in Misc. Civil Appeal No.13 of 2017 is hereby set aside. Delay in filing the application under Order 9 Rule 9 of CPC is condoned.
11. As a consequence, application under Order 9 Rule 9 of CPC is allowed. Civil suit is restored to its original number. Records of Appellate Court be returned back forthwith.
Sd/-
(Parth Prateem Sahu) Judge Yogesh