Madhya Pradesh High Court
Awadh Bihari Soni vs Ghanshyam Prasad Soni (Dead) Through ... on 7 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 7 th OF MAY, 2024
MISC. PETITION No. 2286 of 2024
BETWEEN:-
1. AWADH BIHARI SONI S/O LATE AMBIKA PRASAD SONI,
AGED ABOUT 50 YEARS, OCCUPATION: BUSINESSMAN
NARMADAJI WARD, MANDLA TEH. AND DIST. MANDLA
(MADHYA PRADESH)
2. SMT. RAMIKALI BAI (DEAD)W/O LATE AMBIKA PRASAD
SONI, THROUGH HER LRS. SMT. URMILA SONI W/O
RAMESH SONI, AGED ABOUT 64 YEARS, OCCUPATION:
HOUSEWIFE R/O CIVIL LINE COLONY BILASPUR ROAD
MUNGELI P.S AND TEH. MUNGELI (CHHATTISGARH)
3. SMT. NIRMALA W/O ISHWAR PRASAD SONI, AGED ABOUT
62 YEARS, OCCUPATION: HOUSEWIFE R/O KEDIYA CHOWK
SARANGGARH P.S AND TEH. SARANGGARH DISTRICT
RAIGARH (CHHATTISGARH)
4. SMT. GEETA SONI W/O HARIGOPAL SONI, AGED ABOUT 59
YEAR S, OCCUPATION: HOUSEWIFE R/O BAIKUNTHPURA
GOSHWALA MAHAVIR CHOWK RAIGARH TEH. AND
DISTRICT BEHIND DISTRICT RAIGARH (CHHATTISGARH)
5. DR. SITA SONI W/O DR. KISHOR SONI, AGED ABOUT 57
YEARS, OCCUPATION: DOCTOR R/O P.L 5 INDUS PARK
PHASE II AYODHYA BHYEPASS ROAD BHOPAL (MADHYA
PRADESH)
6. SMT. SAVITRI SONI W/O ANIL SONI, AGED ABOUT 55
YEARS, OCCUPATION: HOUSEWIFE VILLAGE KARHI CIVIL
LINE MUNGELI TEH. AND DISTRICT MUNGELI
(CHHATTISGARH)
7. SMT. KAMLA SONI W/O SHYAM BIHARI SONI, AGED
ABOUT 58 YEARS, OCCUPATION: HOUSEWIFE R/O FLT NO.
716 GODAWARI TOWER ASHOKA CITY NEAR GOVARDHAN
CHOURAHA NH 2 MATHURA (UTTAR PRADESH)
8. SOM DATT S/O SHYAM BIHAR SONI, AGED ABOUT 28
YE A R S , OCCUPATION: BUSINESS R/O FLAT NO. 715
GODAWARI TOWN ASHOKA CITY NEAR GOVARDHAN
Signature Not Verified
Signed by: TRUPTI GUNJAL
Signing time: 07-05-2024
18:48:59
2
CHOURAHA NH 2 MATHURA (UTTAR PRADESH)
9. SOMYA SONI D/O SHYAM BIHARI SONI, AGED ABOUT 25
YEARS, OCCUPATION: STUDENT FLOT NO. 715 GODAWARI
TOWER ASHKA CITY NEAR GOVARDHAN CHOURAHA NH 2
MATHURA (UTTAR PRADESH)
10. PRITI SONI W/O GAJENDRA SONI, AGED ABOUT 48 YEARS,
OCCUPATION: HOUSEWIFE NARMADAJI WARD NO. 3
BESIDE RADHIKA JEWELLERS KALURAM AGRAWAL S/O
GHANSHYAM PRASAD AGRAWAL KE MAKAN KE UPER
BUDHWARI BAZAR CHOWK TEH. AND DISTRICT MANDLA
(MADHYA PRADESH)
11. DR. ALOK SONI S/O LATE AMBIKA PRASAD SONI, AGED
ABOUT 52 YEARS, OCCUPATION: DOCTOR WALI BHAWAN
A-2/1 MAHANANDA NAGAR UJJAIN TEH. AND DISTRICT
UJJAIN (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI BHAGWAN SINGH THAKUR - ADVOCATE)
AND
1. GHANSHYAM PRASAD SONI (DEAD) THROUGH LRS
SMT. RAMPYARI @ SHEELRANI SONI W/O LATE
GHANSHYAM SONI, AGED ABOUT 65 YEARS, OCCUPATION:
HOUSEWIFE RESIDENT OF NARMADAGANJ WARD
MANDLA DIST. MANDLA (MADHYA PRADESH)
2. SANDEEP SONI S/O GHANSHYAM SONI, AGED ABOUT 45
Y E A R S , OCCUPATION: BUSINESS RESIDENT OF
NARMADAGANJ WARD MANDLA DIST. MANDLA
(MADHYA PRADESH)
3. SUDHIR SONI S/O GHANSHYAM PRASAD, AGED ABOUT 43
Y E A R S , OCCUPATION: BUSINESS RESIDENT OF
NARMADAGANJ WARD MANDLA DIST. MANDLA
(MADHYA PRADESH)
4. SEEMIT SONI S/O GHANSHYAM PRASAD, AGED ABOUT 41
Y E A R S , OCCUPATION: BUSINESS RESIDENT OF
NARMADAGANJ WARD MANDLA DIST. MANDLA
(MADHYA PRADESH)
5. GUNJAN @ SHUSHANT SONI S/O GHANSHYAM PRASAD,
AGED ABOUT 39 YEARS, OCCUPATION: BUSINESS
RESIDENT OF NARMADAGANJ WARD MANDLA DIST.
MANDLA (MADHYA PRADESH)
Signature Not Verified
Signed by: TRUPTI GUNJAL
Signing time: 07-05-2024
18:48:59
3
6. SMT. SOONAM W/O PRAMOD SONI @ PAPPU JOHARI
HARSIDDHI MATA MANDIR KE PASS JAYANT CHAKKI
WALE KE SAMNE DARHAI WARD DARHAI JABALPUR
(MADHYA PRADESH)
7. KUNJ BIHARI SONI S/O GEND LAL SONI, AGED ABOUT 63
YEAR S , NEAR KRISHNA MANDIR SINGHWANI WARD
MANDLA (MADHYA PRADESH)
8. RAMBIHARI SONI (DEAD) THEOUGH LRS. SMT.
SATYABHAMA W/O LATE RAMBIHARI SONI, AGED ABOUT
60 YEARS, RESIDENT OF SARAFA BAZAR NANUHARI
SOHAN LAL AND SONS JEWELERS KE SAMNE WALI GALI
KE ANDAR H.NO. 538 NISHAR ALI KA WADA POLICE
STATION CITY KOTWALI DISTRICT JABALPUR (MADHYA
PRADESH)
9. MANISH S/O LATE RAMBIHARI SONI, AGED ABOUT 42
YEARS, RESIDENT OF SARAFA BAZAR NANUHARI SOHAN
LAL AND SONS JEWELERS KE SAMNE WALI GALI KE
ANDAR H.NO. 538 NISHAR ALI KA WADA POLICE STATION
CITY KOTWALI DISTRICT JABALPUR (MADHYA PRADESH)
10. ASHISH S/O LATE RAMBIHARI SONI, AGED ABOUT 40
YEARS, RESIDENT OF SARAFA BAZAR NANUHARI SOHAN
LAL AND SONS JEWELERS KE SAMNE WALI GALI KE
ANDAR H.NO. 538 NISHAR ALI KA WADA POLICE STATION
CITY KOTWALI DISTRICT JABALPUR (MADHYA PRADESH)
11. AMIT S/O RAMBIHARI, AGED ABOUT 37 YEARS, RESIDENT
OF SARAFA BAZAR NANUHARI SOHAN LAL AND SONS
JEWELERS KE SAMNE WALI GALI KE ANDAR H.NO. 538
NISHAR ALI KA WADA POLICE STATION CITY KOTWALI
DISTRICT JABALPUR (MADHYA PRADESH)
12. SMT. RANU SONI W/O SUSHIL KUMAR JADIYA, AGED
ABOUT 35 YEARS, AJAYGARH POLICE STATION AJAYGARH
DISTRICT PANNA (MADHYA PRADESH)
13. SUSHILA BAI SONI W/O HARISHANKAR SONI, AGED
ABOUT 62 YEARS, PANDIT DEEN DAYAL UPADHYAY WARD
LIG D-26 SECTOR 4 RAIPUR (CHHATTISGARH)
14. SURENDRA S/O SHRI GIRDHARI LAL KAMSEYA, AGED
ABOUT 52 YEARS, H.NO. 530 RAJA RASGULLA KI GALI
NEAR CITY KOTWALI JABALPUR (MADHYA PRADESH)
15. RAJKUMAR SIRWANI S/O KESHAV SIRWANI, AGED ABOUT
49 YEARS, SUBHASH WARD MANDLA POLICE STATION
AND DISTRICT MANDLA (MADHYA PRADESH)
Signature Not Verified
Signed by: TRUPTI GUNJAL
Signing time: 07-05-2024
18:48:59
4
.....RESPONDENTS
This petition coming on for admission this day, the court passed the following:
ORDER
This petition under Article 227 of Constitution of India has been filed seeking the following reliefs :-
(i) Call for the entire record of the learned court below vide New No.RCSA No.9-A/2021 for reference and perusal by this Hon'ble Court.
(ii) set aside the impugned order in ordersheet dated 17.11.2022 & 19.12.2022 (Ann.P-1 and P-2) and an opportunity to adduced evidence may be given to the petitioner/plaintiff.
(iii) The Hon'ble Court pleased to direct the lower court to restore the Civil Suit in its original number and status.
(iv) Any other relief which this Hon'ble court may deems fit and proper, including the cost of the litigation.
2 . It is submitted by counsel for the petitioners that on 3.11.2022 the case was listed before the trial court and it was adjourned and was fixed for recording of evidence of plaintiff and plaintiffs' witnesses on 16.11.2022. However, the case was preponed and it was taken on 14.11.2022 and no notice was given to the plaintiff. On 14.11.2022 a last opportunity was given to the plaintiff to examine his all witnesses with a clear rider that otherwise his right will be closed. Against the said order, the petitioner filed an application under Order 9 Rule 9 CPC and the said application was dismissed by the trial court by order dated 19.12.2022 on the ground that the suit has also been dismissed by order dated 17.11.2022.
3 . It is further submitted that earlier the petitioners had filed M.P.No.335/2023 against the order dated 17.11.2022 but in absence of challenge to the order dated 19.12.2022 passed by the trial court in MJC No.198/2024 the said misc.petition was Signature Not Verified Signed by: TRUPTI GUNJAL Signing time: 07-05-2024 18:48:59 5 dismissed as not maintainable. It is submitted that since the application under Order 9 Rule 9 of CPC was filed against the order dated 14.11.2022, therefore, it will not have any effect on the order dated 17.11.2022 and thus M.P.No.335/2023 was maintainable.
4. Heard the learned counsel for the petitioners.
5 . The contention of the petitioners that by order dated 3.11.2023 the case was fixed for recording of evidence of plaintiffs' witness on 16.11.2022 and the case was preponed and it was taken on 14.11.2022 without any notice to the petitioner/plaintiff, is misconceived. The opening line of order dated 14.11.2022 mentions about the presence of the plaintiff. If the plaintiff was present on 14.11.2022 then it is clear that he had prior notice that the case shall be taken upon 14.11.2022.
6. The counsel for the petitioner could not point out any reason for preponment of the case. Sometimes because of declaration of some working day as a holiday, the cases listed on the said date are taken on some other date. Since the petitioner was already having a notice that the case shall be taken up on 14.11.2022, therefore, it is clear that no proceedings were recorded in his absence. Furthermore, by that order, the case was adjourned with a clear finding that the last opportunity to lead evidence is being granted. Surprisingly, the petitioner filed an application under Order 9 Rule 9 CPC against the order dated 14.11.2022 on 17.12.2022 and by that time the order dated 17.11.2022 was already passed and the civil suit was already dismissed.
7. Thus, it is clear that the application under Order 9 Rule 9 CPC itself was not maintainable.
8. Be that whatever it may be.
9.M.P.No.335/2023 has already been dismissed as not maintainable. If the petitioner was of the view that M.P.No.335/2023 was maintainable, then instead of filing the present misc.petition, should have filed an application for review but that was not done.
Signature Not Verified Signed by: TRUPTI GUNJAL Signing time: 07-05-2024 18:48:59 610. Furthermore, since the civil suit has been dismissed, then how a misc.petition would be maintainable, has also not been explained by the petitioner.
11. Accordingly, no case is made out warranting interference.
12. The petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE TG /-
Signature Not Verified Signed by: TRUPTI GUNJAL Signing time: 07-05-2024 18:48:59