Madhya Pradesh High Court
Bhagat Singh vs Vishnu on 7 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:1237
1 MA-3440-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN
ON THE 7 th OF JANUARY, 2026
MISC. APPEAL No. 3440 of 2022
BHAGAT SINGH AND OTHERS
Versus
VISHNU AND OTHERS
Appearance:
Shri Ram Prasad Khare - Advocate for appellants.
None for the respondents.
ORDER
Appellants have filed this miscellaneous appeal under Order 43 Rule 1(c) of C.P.C. challenging impugned order dated 02.07.2022 passed by District Judge (18th), Jabalpur in M.J.C. No.99/2014 (Bhagat Singh and others Vs. Radhika Prasad (now deceased) Vishnu and others).
2. Learned counsel appearing for appellants submits that the plaintiffs/appellants filed a suit seeking a decree for declaration of title and for injunction against respondents/defendants. According to the plaintiffs/appellants, the suit property belongs to Sundar Bai. She inherited the suit property from her mother Mehngi Bai, resident of Sahsan. The appellants are the grandsons of said Sundar Bai. Hajarilal was the husband of said Sundar Bai. Hajarilal and Sundar Bai were occupying the suit land. The defendants/respondents alleged that Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 08-01-2026 19:04:41 NEUTRAL CITATION NO. 2026:MPHC-JBP:1237 2 MA-3440-2022 Hajarilal bequeathed the suit property to them and they filed the suit seeking a decree for declaration on the basis of the alleged Will. The Will has not been held to be a genuine document, therefore, the defendants/respondents filed an appeal before the High Court. The High Court also dismissed the appeal of respondents. The respondents illegally taken possession of the suit land situated at Village Ghuraua. The respondents taken illegal possession of the suit land on the basis of their names illegally mutated in revenue records, therefore, the plaintiffs/appellants filed a suit seeking a decree for declaration, injunction and for restoration of possession. During pendency of the suit, one Bhagwat - Defendant No.4 was died, therefore, to substitute the legal representatives of Bhagwat, the plaintiffs application was filed under Order 22 Rule 5 of C.P.C. and application under Order 22 Rule 9 C.P.C. The case was fixed for appearance of those legal representatives of deceased defendant Bhagwat. On 26.08.2013, the plaintiffs and their advocates did not appear at the time of call of the case, therefore, the suit had been dismissed in default of appearance of the appellants.
3. The plaintiffs/appellants when came to know that suit has been dismissed for default of appearance of the appellants, they filed an application under Order 9 Rule 9 C.P.C. on 12.03.2014 along with an application under Section 5 of the Indian Limitation Act. The respondents and legal representatives of deceased Bhagwat did not appear in the Court when the case was called for hearing and nor opposed the application of the appellants as is evident from the Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 08-01-2026 19:04:41 NEUTRAL CITATION NO. 2026:MPHC-JBP:1237 3 MA-3440-2022 impugned order. Inspite of that there is no opposition of the application. The trial Court by impugned order dated 02.07.2022 rejected the application of the appellants under Section 5 of the Limitation Act. Consequently, dismissed the application under Order 9 Rule 9 C.P.C., therefore, this appeal has been filed before this Court.
4. Learned counsel appearing for appellants further submits that the trial Court failed to consider that when case was not fixed for hearing of the suit, the learned trial Court wrongly dismissed the suit in default of appearance of the appellants, therefore, the learned trial Court ought to have been allowed the application of the appellants under Order 9 Rule 9 C.P.C. and application under Section 5 of the Indian Limitation Act as the order of dismissal of suit on 28.06.2013 itself is illegal and arbitrary as the case was not fixed for hearing of the suit, therefore, for non-appearance of the appellants or their counsel, the trial Court should not have dismissed the suit of the plaintiffs/appellants. The impugned order is apparently illegal and arbitrary, liable to be set aside.
5. Learned counsel appearing for plaintiffs/appellants also placed reliance on the judgment passed by Coordinate Bench of this Court in case of Satish Saggar Vs. Managing Director, M.P. Industrial Centre Development Corporation and another; 1999(2) M.P.L.J. 664 and it has been held in paragraph 5, 6, 7 and 8 as under:-
5. The question is as to what is the procedure followed after the institution of the suit and prior to the stage when the case is called on for hearing.
The first stage provided under Order 5 is issuance Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 08-01-2026 19:04:41 NEUTRAL CITATION NO. 2026:MPHC-JBP:1237 4 MA-3440-2022 of summons for making appearance and to answer the allegation made in the plaint on the date specified in the summons and counter claim, if any, to be filed in the written statement or an objection can also be filed, if available to him under the provisions of Order 7, Rule 11, Civil Procedure Code.
6. Here in the present case, the service was effected and the defendant appeared but the time was allowed for filing the written statement and for that purpose, the case posted on 29.08.1992. After the written statement is filed, then the stage of filing of the suit documents comes, as well as the stage for framing of the issues and after framing of the issues, the case is posted for hearing.
7. In the present case, in fact, the case was not posted for hearing and the date 29.08.1992 was not the date of hearing.
In view of the above, the order sought to be revised is illegal and without jurisdiction and deserves to be set aside.
8. In view of the above, the revision is allowed. The impugned order dated 14.02.1995 is set aside as well as the order dated 29.08.1992 dismissing the suit for default in appearance. The suit is restored to its original number. In the facts and circumstances of the case, I make no order as to costs.
6. Counsel for plaintiffs/appellants also placed reliance on the judgment passed in case of Girdharilal Vs. Brajmohan; 2008(2) M.P.L.J. 293 and in para 4 and 5 it has been held as under:-
4. After having heard the rival submissions of learned counsel for the parties, we are inclined to allow this revision. Shri Mehta, learned counsel for the applicant submitted that on 21.12.2004, the suit was not fixed for hearing and, therefore, the suit could not have been dismissed when the counsel for the plaintiff or the plaintiff himself was absent.Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 08-01-2026 19:04:41
NEUTRAL CITATION NO. 2026:MPHC-JBP:1237 5 MA-3440-2022 In support of his contention, Shri Mehta placed reliance on a Division Bench decision of the Calcutta High Court reported in AIR 1920 Calcutta 204, Satindra Nath Banerjee and others vs. Banwari Mukunda Das Nandy Bahadur and another. That was a case wherein the suit was dismissed in a default on the date fixed for return of Commissioner's report. The Division Bench held that the suit could not have been dismissed on the date fixed for return of the Commissioner's report. A similar view is also taken by the Lahore High Court in AIR 1934 Lahore 56, Langar Khan V. Zahir and others.
5. Under the circumstances, as indicated hereinabove, we are of the clear opinion that the order impugned is unsustainable in law.
Accordingly, we set aside the order passed by the lower appellate Court as well as by the trial Court and it is directed that the trial Court shall restore the suit filed by the present applicant for its disposal on merit. Similarly, the ex-parte judgment and decree passed against the applicant is hereby set aside and the case is sent back to the Court of first instance for its trial from the stage on 21.12.2004 in accordance with law. Thus, both the provisions stand allowed. However, there shall be no orders as to costs.
7. None appeared for the respondents, therefore, respondents proceeded ex-parte.
8. On perusal of the record of the trial Court, it appears that the main Civil Suit No.79A/2011 was fixed on 28.06.2013 for appearance of legal heirs of defendant Bhagwat, but neither plaintiffs nor their advocate appeared on that date before trial Court and process fee was also not filed by plaintiffs, therefore, Civil Suit No.79A/2011 has been dismissed for want of prosecution vide order dated 28.06.2013. Being Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 08-01-2026 19:04:41 NEUTRAL CITATION NO. 2026:MPHC-JBP:1237 6 MA-3440-2022 aggrieved by said order, plaintiffs/appellants have filed an application under Order 9 Rule 9 of C.P.C. before the trial Court which was registered as MJC No.99/2014, said MJC was dismissed on 22.07.2022 on grounds that application was not filed within limitation and also trial Court has mentioned in its order that this application has been filed by delay of 8 months and 12 days and trial Court found that application for condonation of delay was not based on bonafide, but based on gross- negligence.
9. As for as argument made by counsel appearing for plaintiffs/appellants is that the case was not fixed for hearing on 28.06.2013 and trail Court has dismissed the suit on ground that process fee was not paid by the plaintiffs, due to which, notices were not issued. In such a situation, arguments made by counsel for appellants is not acceptable.
10. It is also necessary to mention here that the suit of the appellant/plaintiff has been dismissed by the trial Court on 28.06.2013, whereas an application for restoration under Order 9 Rule 9 of C.P.C. had been filed on dated 12.03.2014 after near about eight months and thirteen days while limitation period is only thirty days. Along with the said application, an application under Section 5 of Limitation Act had been filed in which the reasons for absence have been stated to be the plaintiff being unwell and the advocate being busy in another court, but no such document has been produced by the plaintiff which can validate Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 08-01-2026 19:04:41 NEUTRAL CITATION NO. 2026:MPHC-JBP:1237 7 MA-3440-2022 the reason shown in the application. In such circumstances, the trial Court dismissed the plaintiff's application as was not within the limitation period, this cannot be termed as unfair.
11. In view of aforesaid discussion, this miscellaneous appeal is hereby dismissed and order passed by the trial Court is affirmed.
(RATNESH CHANDRA SINGH BISEN) JUDGE sp/-
Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 08-01-2026 19:04:41