Madhya Pradesh High Court
People S General Hospital Private ... vs Alliance Industries Limited And Others on 9 January, 2023
Author: Sujoy Paul
Bench: Sujoy Paul, Amar Nath Kesharwani
1
M.A.NO.1367 OF 2018
M.A. NO.1368 OF 2018
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
JUSTICE SUJOY PAUL
&
JUSTICE HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 11th OF JANUARY, 2023
MISC. APPEAL No. 1367 of 2018
BETWEEN:-
PEOPLES GENERAL HOSPITAL
PRIVATE LIMITED THR. ON OF ITS
DIRECTOR SHRI I.H. SIDDIQUI
REGISTERED OFFICE AT KAROND
BHANPUR BY PASS VILLAGE
RASLAKHEDI BHOPAL (MADHYA
PRADESH)
....APPELLANT
(BY SHRI AMALPUSHP SHROTI - ADVOCATE)
AND
ALLIANCE INDISTRIES LIMITED
AND OTHERS THR. DIRECTOR SHRI
VIVEK GULATEE OFFICE 279 MAIN
STREET, GIBRALTER BRANCH
OFFICE AT P.O. BOX 7768 SAIF ZONE
SHARJAH UNITED ARAB EMIRATES
(UAE)
.....RESPONDENT
(BY SHRI SANJAY K. AGRAWAL- ADVOCATE)
MISC. APPEAL No. 1368 of 2018
Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 1/12/2023
3:04:42 PM
2
M.A.NO.1367 OF 2018
M.A. NO.1368 OF 2018
BETWEEN:-
PEOPLE S GENERAL HOSPITAL
PRIVATE LIMITED THROUGH ONE
OF ITS DIRECTOR SHRI I.H.
SIDDIQUI HAVING ITS REGISTERED
OFFICE AT KAROND BHANPUR BY
PASS VILLAGE RASLAKHEDI
BHOPAL (MADHYA PRADESH)
...APPELLANT
(BY SHRI AMALPUSHP SHROTI - ADVOCATE)
AND
ALLIANCE INDUSTRIES LIMITED
AND OTHERS THROUGH DIRECTOR
SHRI VIVEK GULATEE REGISTERED
OFFICE 279 MAIN STREET
GIBRALTER BRANCH OFFICEAT P.O.
BOX 7768 SAIF ZONE SHARJAH
UNITED ARAB EMIRATES (UAE)
(BY SHRI SANJAY K. AGRAWAL- ADVOCATE)
.........................................................................................
This appeal coming on for hearing this day, JUSTICE SUJOY
PAUL passed the following:
ORDER
These appeals filed under Order 43 Rule 1 (c) of the Code of Civil Procedure 1908 (CPC) are directed against the similar orders dated 15.12.2017 passed in MJC (Arbitration) 78/2016 and in MJC (Arbitration) 75/2016 by the Court below.
Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 1/12/2023 3:04:42 PM 3M.A.NO.1367 OF 2018 M.A. NO.1368 OF 2018
2. Learned counsel for the parties at the outset submits that the Court below passed similar orders in both the matters and, therefore, these matters can be heard and decided analogously. In this backdrop, the matters were analogously heard. The facts are taken from M.A. No.1367 of 2018.
3. The appellant/plaintiff filed a suit for damages which was registered as Civil Suit No.1178A/2012. Similarly another matter was registered as Civil Suit No.1179A/2012. The other side was put to notice by the Court below.
4. Learned counsel for the appellant submits that appellant through his counsel remained present before the Court below on 16.8.2016 and 9.9.2016. The next date was fixed on 18.10.2016. On the said date, neither the plaintiff and his counsel nor the defendant and his counsel remained present. The matter was directed to be taken at 4 PM on the same day. The matter was taken at 5.15 PM. Both the parties and their counsel remained absent and, therefore, the matter was dismissed in default.
5. The appellant subsequently filed an applications under Order 9 Rule 9 of CPC for restoration of both the civil suits. It is averred that previously five civil suits of similar nature were listed on the same date i.e. on 9.9.2016. The next date in said civil suits was fixed on 5.11.2016. However, in the aforesaid two civil suits which were dismissed, the next date was given as 18.10.2016. The counsel for the plaintiff inadvertently Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 1/12/2023 3:04:42 PM 4 M.A.NO.1367 OF 2018 M.A. NO.1368 OF 2018 noted the next date as 5.11.2016 in place of 18.10.2016 and, therefore, could not remain present on the said date. Shri Amalpushp Shroti, learned counsel for the appellant submits that when other side was put to notice, on the restoration applications, they did not participate in the proceedings. The Court below rejected the applications on hyper technical ground by the impugned order dated 15.12.2017. The singular reason for rejection is that appellant has not filed the order sheets of other civil cases which in his opinion were similar. Thus, the Court below has taken a very strict and hyper technical view which needs to be interfered with. Accordingly, the impugned orders may be set aside and the civil suits may be restored to their original numbers.
6. Shri Sanjay K. Agrawal, learned counsel for the respondent supported the impugned orders and urged that the Court below has not committed any error of fact or law. The appellant has not filed any document to show that other civil matters which were previously listed on the same date were of similar nature. The counsel who entered appearance in support of the applications filed under Order 9 Rule 9 of CPC did not produce the diary to show that he has erroneously recorded the date.
7. Learned counsel for the parties confined their arguments to the extent indicated above.
8. We have heard learned counsel for the parties at length and perused the record.
Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 1/12/2023 3:04:42 PM 5M.A.NO.1367 OF 2018 M.A. NO.1368 OF 2018
9. The record shows that the counsel for the appellant marked his presence in the civil suit on 16.8.2016 and 9.9.2016. Pertinently, only on one date, i.e. on 18.10.2016, the plaintiff and his counsel remained absent. On the said date, other side also remained absent. The Court below dismissed the civil suits for default.
10. In the application under Order 9 Rule 9 of CPC, it is averred that similar matters were previously fixed on 9.9.2016 alongwith instant civil suits and few of such civil suits were directed to be listed on 5.11.2016. The counsel for plaintiff erroneously recorded the same date for instant civil suits also whereas Court below fixed the date as 18.10.2016.
11. It is noteworthy that despite receiving notices, nobody entered appearance in Order 9 Rule 9 of CPC proceedings before the court below. Thus, no reply to the applications under Order 9 Rule 9 of CPC were filed. It is gathered that Court below rejected the applications solely on the ground that applicant has not filed relevant order sheets and copy of plaints to show that other matters fixed on 05.11.2016 were similar to the present suits.
12. We find substance in the argument of Shri Amalpushp Shroti, learned counsel for the appellant that the view taken by the court below is hyper technical in nature. The respondent has not taken care to file any reply to the applications preferred under Order 9 Rule 9 of CPC. Thus, there was no reason for the court to disbelieve the averments of Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 1/12/2023 3:04:42 PM 6 M.A.NO.1367 OF 2018 M.A. NO.1368 OF 2018 application under Order 9 Rule 9 of CPC. Absence of plaintiff on one particular date appears to be bonafide and in our opinion a reasonable cause has been shown for the absence on 18.10.2016. Resultantly, the order dated 15.12.2017 in both the cases are set aside and Civil Suit No.1178A/2012 and Civil Suit No.1179A/2012 are directed to be restored to its original numbers. The record of court below be sent back.
13. The appeals are disposed of.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
bks
Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 1/12/2023
3:04:42 PM