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[Cites 2, Cited by 3]

Chattisgarh High Court

Sanjay Kumar Shrivastava vs Smt. Jhuniya Bai 122 Fa/237/2017 Ajay ... on 8 November, 2017

Author: Prashant Kumar Mishra

Bench: Prashant Kumar Mishra

                                  1

                                                                  NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                        FA No. 234 of 2017

 Sanjay Kumar Shrivastava S/o Shri N. L. Shrivastava, Aged
  About 40 Years, R/o Kutchari Road, Durg, District Durg,
  Chhattisgarh ................(Plaintiff)

                                                         ---- Petitioner

                              Versus

1. Smt. Jhuniya Bai W/o Late Shri Bishal Prasad, Aged About 50
   Years, R/o Village Khada, Tahsil And District Durg, Chhattisgarh

2. Veerandra S/o Govind Singh Deshmukh, Aged About 55 Years,
   R/o Village Achhoti, Tah. & District Durg, Chhattisgarh

3. Kushal Deshmukh, S/o Shri Ram Charan Deshmukh, Aged About
   50 Years, R/o Village Changori, Tah. & District Durg, Chhattisgarh

4. State Of Chhattisgarh, Through The Collector Durg, Chhattisgarh

5. Galab Prasad, S/o Late Shri Lakhan Lal, Aged About 35 Years,
   R/o Village Changori, Tah. & District Durg, Chhattisgarh

6. Rikhiram S/o Shri Gajpatilal, R/o Village Changori, Tah. & District
   Durg, Chhattisgarh

7. Hitesh Kumar Deshmukh, S/o Shri Devnarayan Deshmukh, Aged
   About 65 Years, R/o Katchari Road, Tah. & District Durg,
   Chhattisgarh

8. Bhupendra Kumar S/o Shri Neelkanth, Aged About 30 Years, R/o
   Village Mongri, Tah. & District Durg, Chhattisgarh

9. Shalik Ram S/o Shri Hanuman Singh, R/o Village Mongri, Tah. &
   District Balod, Chhattisgarh

10. Parikchhit Kumar S/o Late Shri Lakhan, Aged About 30 Years,
    R/o Village Changori, Tah. & District Durg, Chhattisgarh

11. Geeta Bai W/o Late Shri Lakhanlal, Aged About 55 Years, R/o
    Village Changori, Tah. & District Durg, Chhattisgarh

12. Nemichand S/o Late Shri Lakhan, Aged About 19 Years R/o
    Village Changori, Tah. & District Durg, Chhattisgarh

13. Yashwant S/o Late Shri Lakhan, Aged About 18 Years, R/o
    Village Changori, Tah. & District Durg, Chhattisgarh ................
    (Defendants)
                                   2

                                                     ---- Respondents

And FA No. 235 Of 2017  Shyam Kumar Shrivastava S/o Shri N.L.Shrivastava, Aged About 43 Years R/o Kutchari Road, Durg, District Durg, Chhattisgarh ................(Plaintiff)

---- Petitioner Vs

1. Smt. Jhuniya Bai, W/o Late Shri Bishal Prasad, Aged About 50 Years, R/o Village Khada, Tahsil And District Durg, Chhattisgarh

2. Veerandra S/o Govind Singh Deshmukh, Aged About 55 Years R/o Village Achhoti, Tah. & District Durg, Chhattisgarh

3. Kushal Deshmukh S/o Shri Ram Charan Deshmukh, Aged About 50 Years R/o Village Changori, Tah. & District Durg, Chhattisgarh

4. State Of Chhattisgarh, Through The Collector Durg, Chhattisgarh

5. Galab Prasad S/o Late Shri Lakhan Lal, Aged About 35 Years R/o Village Changori, Tah. & District Durg, Chhattisgarh

6. Rikhiram S/o Shri Gajpatilal, R/o Village Changori, Tah. & District Durg, Chhattisgarh

7. Hitesh Kumar Deshmukh S/o Shri Devnarayan Deshmukh, Aged About 65 Years R/o Katchari Road, Tah. & District Durg, Chhattisgarh

8. Bhupendra Kumar S/o Shri Neelkanth, Aged About 30 Years R/o Village Mongri, Tah. & District Durg, Chhattisgarh

9. Shalik Ram S/o Shri Hanuman Singh, R/o Village Mongri, Tah. & District Balod, Chhattisgarh

10. Parikchhit Kumar, S/o Late Shri Lakhan, Aged About 30 Years, R/o Village Changori, Tah. & District Durg, Chhattisgarh

11. Geeta Bai, W/o Late Shri Lakhanlal, Aged About 55 Years, R/o Village Changori, Tah. & District Durg, Chhattisgarh

12. Nemichand, S/o Late Shri Lakhan, Aged About 19 Years, R/o Village Changori, Tah. & District Durg, Chhattisgarh

13. Yashwant S/o Late Shri Lakhan, Aged About 18 Years, R/o Village Changori, Tah. & District Durg, Chhattisgarh ................ (Defendants) 3

---- Respondents And FA No. 237 Of 2017  Ajay Kumar Shrivastava, S/o Shri N. L. Shrivastava, Aged About 45 Years, R/o Kutchari Road, Durg, District Durg, Chhattisgarh ................(Plaintiff)

---- Petitioner Vs

1. Smt. Jhuniya Bai, W/o Late Shri Bishal Prasad, Aged About 50 Years, R/o Village Khada, Tahsil And District Durg, Chhattisgarh

2. Veerandra S/o Govind Singh Deshmukh, Aged About 55 Years R/o Village Achhoti, Tah. & District Durg, Chhattisgarh

3. Kushal Deshmukh S/o Shri Ram Charan Deshmukh, Aged About 50 Years R/o Village Changori, Tah. & District Durg, Chhattisgarh

4. State Of Chhattisgarh, Through The Collector Durg, Chhattisgarh

5. Galab Prasad S/o Late Shri Lakhan Lal, Aged About 35 Years R/o Village Changori, Tah. & District Durg, Chhattisgarh

6. Rikhiram S/o Shri Gajpatilal, R/o Village Changori, Tah. & District Durg, Chhattisgarh

7. Nitish Kumar S/o Devnarayan, Aged About 35 Years R/o Katchari Road, Durg Tah. & District Durg, Chhattisgarh

8. Bhupendra Kumar S/o Shri Neelkanth, Aged About 30 Years R/o Village Mongri, Tah. & District Durg, Chhattisgarh

9. Shalik Ram S/o Shri Hanuman Singh, R/o Village Mongri, Tah. & District Balod, Chhattisgarh

10. Parikchhit Kumar, S/o Late Shri Lakhan, Aged About 30 Years, R/o Village Changori, Tah. & District Durg, Chhattisgarh

11. Geeta Bai W/o Late Shri Lakhanlal, Aged About 55 Years R/o Village Changori, Tah. & District Durg, Chhattisgarh

12. Nemichand S/o Late Shri Lakhan, Aged About 19 Years R/o Village Changori, Tah. & District Durg, Chhattisgarh

13. Yashwant S/o Late Shri Lakhan, Aged About 18 Years R/o Village Changori, Tah. & District Durg, Chhattisgarh ................

    (Defendants)
                                       4

                                                        ---- Respondents




For Appellants                     Shri R. K. Tiwari, Advocate
For Respondent-State               Shri Rajendra Tripathi, PL
For Private Respondents            Shri P. R. Patankar, Advocate

Hon'ble Shri Justice Prashant Kumar Mishra Order On Board 08/11/2017

1. These three appeals have been preferred by the plaintiffs challenging the dismissal of their suit under Order 17 Rule 3 CPC for their failure to produce their evidence or to perform the necessary act for further progress of the suit.

2. Shorn of unnecessary details, suffice it would be to mention that the plaintiffs preferred the suit in November, 1994 seeking damages and permanent injunction over the suit land without filing any schedule describing the suit land or mentioning in the prayer clause as to the land identifiable by khasra numbers or boundaries together with the name of the village/locality/ township/tehsil/RI circle/district.

3. On 09.07.1997, the trial Court framed issues and posted the matter for recording evidence of the parties on 06.08.1997, however, thereafter both the parties moved various applications including the application for impleadment of legal heirs. 5

4. The impugned order dismissing the suit has been passed on 19.01.2017, however, perusal of the order sheets of 8 to 10 previous dates of hearing would reveal that on 12.04.2016, the suit was posted for further orders; on 07.05.2016, the Presiding Officer was on leave; on 15.06.2016, both the parties were present but the matter was adjourned for further orders and similar orders were recorded on 27.06.2016, 18.07.2016, 06.08.2016, 06.09.2016 and 24.09.2016.

5. On 22.10.2016, the defendant Nos.1 and 2 moved application under Section 151 CPC, which was posted for reply and argument on 21.12.2016. Arguments on the application were heard on 09.01.2017 and thereafter the impugned order has been passed on 19.01.2017. In the said application under Section 151 CPC, the plaintiffs prayed for consolidation of the four civil suits for analogous hearing and disposal. Out of four suits mentioned in the application, one was relating to First Appeal No.34/2015 pending before this Court. The plaintiffs desired, in express terms, that the first appeal pending before the High Court should also be sent back to the District Court for consolidated disposal. It is this application which was taken up for hearing and was disposed of on 17.01.2017 dismissing the application as well as the suit under Order 17 Rule 3 CPC.

6. After hearing learned counsel for the parties, this Court is satisfied that on the date when the application under Section 151 CPC was taken up for consideration by the trial Court or on any of the previous 8 to 10 hearings, the suit was never posted for 6 recording the evidence of the parties or for doing any such acts by the plaintiffs, which they failed to do, the default of which would attract invocation of the provision contained under Order 17 Rule 3 CPC. The trial Court appears to have swayed by the long pendency of the suit and finding that the parties are not taking interest in disposal of the suit, it went on to dismiss the suit under Order 17 Rule 3 CPC, which is not permissible.

7. In the considered view of this Court, if the trial Court was of the opinion that the parties are not cooperating, it could have fixed the suit for recording evidence of the parties after disposing of all the pending interim applications in 8 to 10 previous hearings when the suit was always posted for further orders. At the same time, it can also not be lost sight of that the plaintiffs having set the law in motion were responsible to actively take part in the proceedings to get the matter decided by inviting the attention of the trial Court for an early disposal.

8. The trial Court has also not stated, in the impugned order, as to the particular act necessary to be performed by the plaintiffs, which they failed to perform inviting mischief of Order 17 Rule 3 CPC. The impugned order therefore has to be set aside and sent back to the trial Court for disposal in accordance with law. At the same time, the defendants are required to be compensated for having made to face the litigation for about 24 years without the suit even been posted for recording evidence of the parties after 06.08.1997, therefore, while allowing the appeals, it is directed that the appellants shall pay cost of Rs.10,000/- to each of the 7 defendant in each of the suit within a period of two months from today. If the plaintiffs/appellants fail to deposit the cost in form of bank draft in the name of concerned defendant before the trial Court within two months, the suit shall be dismissed by the trial Court. If the plaintiffs deposit the cost in the manner indicated in this order, the trial Court shall fix the suit for recording evidence of the plaintiffs on 12.01.2018. The plaintiffs shall examine their entire witnesses on 12.01.2018 without seeking any adjournment in the matter. The trial Court shall not allow any adjournment to the plaintiffs. The defendants shall thereafter adduce their entire evidence on the next date, which shall not be later than four weeks from 12.01.2018. The trial Court shall decide the suit by 28.02.2018.

Sd/-

Judge Prashant Kumar Mishra Nirala