Madhya Pradesh High Court
Mohan vs Ghisiya on 30 June, 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 30th OF JUNE, 2023
MISC. PETITION No. 3532 of 2023
BETWEEN:-
MOHAN S/O RUKHDU KALAL, AGED ABOUT 62 YEARS,
OCCUPATION: BUSINESS GRAM MORANI TEHSIL AND DISTRICT
BARWANI (MADHYA PRADESH)
.....PETITIONER
(SHRI PANKAJ KUMAR SOHANI, ADVOCATE)
AND
GHISIYA S/O BHIKYA OCCUPATION: AGRICULTURIST GRAM
1.
MORANI TEHIL AND DISTRICT BARWANI (MADHYA PRADESH)
LATE JAGAN S/O BHIKYA BHILALA THROUGH LRS RADVIBAI
W/O JAGAN BHILALA, AGED ABOUT 58 YEARS, OCCUPATION:
2.
AGRICULTURIST GRAM MORANI, TEH. AND DIST. BARWANI
(MADHYA PRADESH)
LATE JAGAN S/O BHIKYA BHILALA THROUGH LRS
CHAINSINGH S/O JAGAN, AGED ABOUT 40 YEARS,
3.
OCCUPATION: AGRICULTURIST GRAM MORANI, TEH. AND
DIST. BARWANI (MADHYA PRADESH)
LATE JAGAN S/O BHIKYA BHILALA THROUGH LRS LAXMAN
S/O JAGAN BHILALA, AGED ABOUT 38 YEARS, OCCUPATION:
4.
AGRICULTURIST GRAM MORANI TEHSIL AND DISTRICT
BARWANI (MADHYA PRADESH)
5. LATE JAGAN S/O BHIKYA BHILALA THROUGH LRS
Signature Not Verified
Signed by: REENA PARTHO
SARKAR
Signing time: 30-Jun-23
6:19:14 PM
2
AMARSINGH S/O JAGAN BHILALA, AGED ABOUT 28 YEARS,
OCCUPATION: AGRICULTURIST GRAM MORANI, TEH. AND
DIST. BARWANI (MADHYA PRADESH)
LATE JAGAN S/O BHIKYA BHILALA THROUGH LRS
BHURSINGH S/O JAGAN BHILALA, AGED ABOUT 23 YEARS,
6.
OCCUPATION: AGRICULTURIST GRAM MORANI, TEH. AND
DIST. BARWANI (MADHYA PRADESH)
RAMESH S/O BHIKYA BHILALA, AGED ABOUT 51 YEARS,
7. OCCUPATION: AGRICULTURIST MORANI, DIST. TEH. AND
DIST. BARWANI (MADHYA PRADESH)
MOHAN S/O BHIKYA BHILALA, AGED ABOUT 42 YEARS,
8. OCCUPATION: AGRICULTURIST MORANI, DIST. TEH. AND
DIST. BARWANI (MADHYA PRADESH)
PANUBAI W/O BHIKYA BHILALA, AGED ABOUT 79 YEARS,
9. OCCUPATION: NIL MORANI, DIST. TEH. AND DIST. BARWANI
(MADHYA PRADESH)
RAMLAL S/O GOPAL BHILALA, AGED ABOUT 36 YEARS,
10. OCCUPATION: AGRICULTURIST MORANI, DIST. TEH. AND
DIST. BARWANI (MADHYA PRADESH)
STATE OF M.P. THROUGH COLLECTOR BARWANI, DIST.
11.
BARWANI DIST. BARWANI (MADHYA PRADESH)
.....RESPONDENTS
This petition coming on for admission this day, the court
passed the following:
ORDER
This miscellaneous petition has been filed under Article 227 of the Constitution of India against the order dated 12/06/2023 passed by Civil Judge,Junior Division, Rajpura District Barwani in RCSNo.12-A/2019,whereby, the petitioner's/plaintiff's application filed under Order 17 Rule 1 of the Code of Civil Procedure (hereinafter to be referred to as "CPC"), for adjournment, has been rejected on the ground that the plaintiff was directed to keep Signature Not Verified Signed by: REENA PARTHO SARKAR Signing time: 30-Jun-23 6:19:14 PM 3 his witnesses present on the next date of hearing.
Counsel for the petitioner/plaintiff has submitted that the suit was filed by the petitioner/plaintiff for declaration and permanent injunction in which plaintiff himself has already been examined on 12.05.2023, and on the next date of hearing, i.e., 12.06.2023 when the plaintiff's witness's statement was to be recorded, the plaintiff got indisposed and could not bring his witness and his advocate was also not present, hence an application to this effect was filed on his behalf under order 17 rule 1 of CPC, however, the learned judge of the trial Court, holding that on the last date of hearing the plaintiff was directed to bring his witness and in the application also he has not given such circumstances which may compel the Court to adjourn the matter, has dismissed the application.
Counsel for the petitioner has also submitted that the petitioner/plaintiff is very much interested in prosecuting his case and only one adjournment was sought by the petitioner/plaintiff as prior to that, he himself got examined in the trial Court. Thus it is submitted that one opportunity ought to have been granted by the trial Court to record the plaintiff's evidence. It is also submitted that only one witness is required to be examined on behalf of the plaintiff.
Heard learned counsel for the petitioner and perused the record.
Signature Not Verified Signed by: REENA PARTHO SARKAR Signing time: 30-Jun-23 6:19:14 PM 4From perusal of the record, it is found that the counsel appearing for the contesting defendant had orally objected to the aforesaid application filed by the petitioner/plaintiff and in such circumstances, there appears no requirement to serve the respondents the notice of this petition as short point is involved.
From the perusal of the record, it is apparent that without affording him any last opportunity to lead further evidence, the learned judge of the trial Court has rejected the adjournment application only on the ground that the plaintiff was directed to keep his witness present on the next date of hearing after he got himself examined. This court is of the considered opinion that one last opportunity ought to have been given by the learned judge of the trail court to the petitioner to lead his evidence.
In view of the same,the impugned order is set aside and the matter is remanded back to the trial Court to proceed further in accordance with law and allow the plaintiff to lead his evidence on the next date of hearing.
Accordingly, the miscellaneous petition stands disposed of.
(SUBODH ABHYANKAR) JUDGE das Signature Not Verified Signed by: REENA PARTHO SARKAR Signing time: 30-Jun-23 6:19:14 PM