Madhya Pradesh High Court
Rameshwar Singh vs Hati Singh on 17 September, 2014
1 MCC 305/2014
Rameshwar Singh and another Vs. Hati Singh and Others
17.09.2014
Shri D.D. Bansal, Advocate for the applicants.
Heard on I.A.No.4601/2014, an application under Section
5 of Limitation Act for condonation of delay in filing the
petition.
It is obvious that the learned counsel for the applicants
had no occasion to know about the default. The process fee was
paid vide No.26503 dated 5.0.2009 and the same was attached
in "B" part of the file. However, on 24.9.2009, the Writ
Petition was dismissed without reference to the Court for non-
compliance of order dated 31.08.2009.
On perusal of order dated 31.08.2009, it shows that the
Court was pleased to direct to issue notice to the other side to
show cause against admission and final disposal at the motion
hearing stage. Requisites on both the counts within three days,
failure shall lead to automatic dismissal of the writ petition.
The applicants claimed that they came to know about the
dismissal on 19.8.2004. After inspection of the case and after
obtaining copies on 3.9.2014, this petition has been filed on
5.9.2014. Application is also supported by a affidavit of
Ramjilal, applicant No.2.
Considering the facts mentioned in the application, which
2 MCC 305/2014
is supported by an affidavit, it is allowed.
Heard.
The applicants and the non-applicants No.2 and 3 had
filed Writ Petition No.3902/2009 (I), challenging the order
dated 22.07.2009 passed by First Additional District Judge,
Morena, in Misc. Civil Appeal No.04/09 praying to set-aside
the impugned order. This Writ Petition was filed on
25.08.2009. It came up for hearing before the Division Bench
on 31.08.2009. Whereupon, this Court has ordered to serve
notice of show cause to the other parties.
However, 05.09.2009, an endorsement is made by the
Registrar that Process Fee is attached in "B" Part. Process Fee
No.26503 dated 5.9.2009 is mentioned in the margin.
On 24.09.2009, the order-sheet of the Principal Registrar
shows that "due to non-compliance of the Hon'ble Court order
dated 31.08.2009, this petition has been dismissed on 4.9.2009
without reference to Hon'ble Court."
Aggrieved by this order, the applicants have filed the
present MCC and requested that the order of the Office be set-
aside and requested further to restore the Writ Petition
No.3902/2009 in the interest of justice.
Heard the learned counsel for the applicants and perused
the record of Writ Petition No.3902/2009.
3 MCC 305/2014
It seems that for non-compliance of the order dated
31.08.2009, the Writ Petition was dismissed on 24.09.2009
without referring to the Court under the believe that Process Fee
has not been paid.
Under Order IX Rule 2 C.P.C., a suit may be dismissed
where summons not served in consequence of the plaintiff's
failure to pay P.F. Failure to deposit of process fee for service
on the defendant before the date fixed for hearing justifies
dismissal under Order IX Rule 2 C.P.C.
In the present case, on perusal of the record we found the
averments of the applicants are correct. No notice is necessary
under Order IX Rule 4 C.P.C. to the non-applicants/respondents
for the simple reason that the order of dismissal has been passed due to inadvertent mistake.
It would be pertinent to mention here that the approach of the Court should be liberal and pragmatic so that no injustice is caused to the litigant who has approached the Court with all the expectations of getting justice. More so, when the mistake has not been committed by the petitioner, the dismissal order on technical consideration would definitely result in defeating the cause of substantive justice.
Therefore, we considered the present application under Order IX Rule 4 and also under 151 of C.P.C. and set-aside the 4 MCC 305/2014 order dated 24.09.2009 and restore the Writ Petition to its original number (i.e. 3902/2009).
A copy of this order be kept in Writ Petition No.3902/2009.
( S. K. Gangele) (S.K. Palo)
Judge Judge
mani