Madhya Pradesh High Court
Rajendra Singh Urf Raju vs Yogesh on 6 January, 2023
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
ON THE 6th OF JANUARY, 2023
MISC. PETITION No. 3547 of 2022
BETWEEN:-
RAJENDRA SINGH URF RAJU S/O DURGASINGH
CHOUHAN, AGED ABOUT 54 YEARS,
OCCUPATION: SUTARI KARYA 990/9 NEHRU
NAGAR INDORE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI PAVAN KUMAR VERMA, ADVOCATE)
AND
YOGESH S/O SUNDERLAL LAD, AGED ABOUT 47
YEARS, OCCUPATION: CHIKITSAK 292-A, SLICE
1.
NO. 4 SCHEME NO. 78 INDORE (MADHYA
PRADESH)
SMT. YOGITA W/O GIRISH VADHVANI, AGED
ABOUT 35 YEARS, OCCUPATION: HOUSE WORK
2.
940, KHATIWALA TANK, INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI R.K. LAAD, ADVOCATE FOR RESPONDENT NO.1)
This petition coming on for admission and I.A. this day, the court
passed the following:
ORDER
This misc. petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dated 09/07/2022 passed in Civil Suit No.1192-A/2018 by the 8th Civil Judge, Senior Division, Indore whereby an application filed by respondent No.1/defendant under Order 9 Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 09-01-2023 18:31:30 2 Rule 7 of CPC for setting aside ex-parte order has been allowed and the case is now to be heard by-party.
Counsel for the petitioner has submitted that the aforesaid application has wrongly been allowed by the Trial Court while holding that the trial is yet to be commenced, as the petitioner has already filed his affidavit under Order 18 Rule 4 of CPC on 11/07/2019, and prior to that the defendant No.1 was proceeded ex-parte on 16/04/2019, whereas the application filed under Order 9 Rule 7 of CPC was filed on 13/02/2020. Counsel has further submitted that the reasons assigned for non- appearance of respondent have not been properly supported by the affidavit of the counsel who had stated that he was appearing in some other case on 17/01/2020, at that time, he came to know about the present case. In support of his submission, counsel for the petitioner has relied upon the decision rendered by the Supreme Court in the case of Indira Kashyap Vs. K.N. Kashyap reported as (1984) 3 SCC 107.
On the other hand, counsel appearing for the respondent No.1/defendant, has opposed the prayer and it is submitted that no illegality has been committed by the learned Judge of the Trial Court specially when the application was only to make the defendant No.1 as by-parte. Counsel has further submitted that even assuming that an affidavit under Order 18 Rule 4 of CPC has been filed by the plaintiff, he has still not been cross examined and plaintiff has also not closed evidence prior to filing of application for setting aside ex-parte order dated 13/02/2020. It is further submitted that the learned Judge of the Trial Court has taken a lenient view of the matter and needs no interference.
Heard. On due consideration of submissions and perusal of the documents filed on record, this Court finds force with the contentions Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 09-01-2023 18:31:30 3 raised by learned counsel for respondent No.1 and is of the opinion that no illegality or jurisdictional error has been committed by the learned Judge of the Trial Court in allowing the application filed under Order 9 Rule 7 of CPC, as this court is of the considered opinion that such an application has to be decided leniently and a pedantic approach in deciding the same is not called for. So far as the decision relied upon by the counsel for the petitioner in the case of Indira Kashyap (supra) is concerned, the same relates to a proceeding under Order 9 Rule 13 of CPC which is different from a proceeding u/Or.9 Rule 7 of CPC, and thus, no case for interference is made out.
Accordingly, misc, petition being devoid of merits is hereby dismissed.
(SUBODH ABHYANKAR) JUDGE krjoshi Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 09-01-2023 18:31:30