1 2025:CGHC:10432 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 22 of 2019 1 - Manish Kothari S/o Shri Bheekhamchand Kothari Aged About 46 Years R/o Akash Ganga, Supela Bhilai, Tahsil And District- Durg, Chhattisgarh., District : Durg, Chhattisgarh ... Appellant versus 1 - Shri Mahavir Prasad Jain S/o Late Shri Ladu Jain Aged About 56 Years R/o Road No.4, Shanti Nagar, Bhilai, Tahsil And District- Durg, Chhattisgarh. Commercial Address- Jain Steel, Besides Ganpati Motors, Supela Bhilai, Tahsil And District- Durg, Chhattisgarh., District : Durg, Chhattisgarh 2 - Smt. Archana Devi Jain W/o Shri Mahavir Prasad Jain Aged About 52 Years R/o Road No.4, Shanti Nagar, Bhilai, Tahsil And District- Durg, Chhattisgarh. Commercial Address- Jain Steel, Besides Ganpati Motors, Supela Bhilai, Tahsil And District- Durg, Chhattisgarh., District : Durg, Chhattisgarh 3 - State Of Chhattisgarh Through District- President/secretary, Durg, District Officer, Durg, Chhattisgarh., District : Durg, Chhattisgarh ... Respondents For appellant : Mr. Mayank Gupta, Adv. on behalf of Mr. Manoj Paranjpe, Adv. For Respondents No. 1 and 2 : Mr. Vikas Shrivastava, Adv. For Respondent No. 3 / State : Mr. Rajeev Bharat, Govt. Adv. (Hon’ble Mr. Naresh Kumar Chandravanshi) Order on Board 3/3/2025 1 This misc. appeal has been preferred by the appellant/plaintiff under Order 43 Rule 1(c) of the Civil Procedure Code, 1908 (henceforth Digitally signed by AVANISH KUMAR PATHAK Date: 2025.03.07 10:56:42 +0530 2 ‘CPC’) challenging the order dated 28-1-2019 passed by the 1st Addl. District Judge, Durg in Civil MJC case No. 24/2017, whereby application filed by the appellant/plaintiff under Order 9 Rule 9 of CPC has been rejected. 2 Facts of the case in nutshell are that, appellant/plaintiff filed a civil suit for specific performance of contract, possession and permanent injunction against the respondents/defendants in the year 2010. On 7- 2-2017, case was fixed for plaintiff’s evidence, but on that day, despite call twice, plaintiff did not appear, therefore, the suit was dismissed for want of prosecution. On the same day, plaintiff filed application under Order 9 Rule 9 of the CPC, which was also dismissed by learned trial Court vide impugned order, observing therein about negligent and irresponsible conduct of plaintiff and hence, this appeal. 3 Learned counsel for the appellant / plaintiff would submit that, though plaintiff has filed the civil suit in the year 2008, but on the date of hearing i.e. 7-2-2017, plaintiff’s witness Suresh Kumar Kothari was present in the Court, despite that, learned trial Court recorded absence of plaintiff, whereas counsel for plaintiff was engaged in other Court, therefore, he could not attend hearing of the case when it was called upon. Restoration application was filed by the plaintiff on the same day, despite that, learned trial Court has dismissed the application, hence it is prayed that, the appeal may be allowed and impugned order dated 28-1-2019 (Annexure A-1) may be set aside and the application under Order 9 Rule 9 of the CPC filed by the plaintiff may also be allowed, order dated 7-2-2017 passed in Civil Suit No. 27-A/2010 may also be set aside and the civil suit No. 27-A/2010 may 3 be restored. 4 Per contra, learned counsel appearing for the respondents No. 1 and 2/ defendants No. 1 and 2 would submit that, despite repeated call, the appellant/plaintiff did not appear, therefore, suit was dismissed, but instead of seeking excuse in application filed by the appellant/plaintiff, he has levelled allegation against the Court itself. Hence, instant appeal is liable to be dismissed. 5 Learned counsel for the State submits that, State is a formal party. 6 I have heard learned counsel for the parties and perused the material available on record carefully. 7 Civil Suit No. 27-A/2010 (Manish Kothari Vs. Smt. Archana Devi Jain and ors.) was filed in the year 2010, despite that, till year 2017, plaintiff’s evidence was not completed. Even as per order sheet dated 7-2-2017 of aforesaid civil suit, on that date, the case was called twice, but plaintiff and his witnesses did not appear before the Court. Therefore, there was no option before the Court except to dismiss the civil suit. 8 Though, in application filed by the plaintiff under Order 9 Rule 9 of the CPC, it was mentioned that, plaintiff’s witnesses Suresh Kumar Kothari was present in the Court, but neither counsel nor party was present, when the case was called upon twice. Counsel is said to be engaged in other court, but such ground cannot be considered to be sufficient cause for non-appearance of the party. It has also been mentioned in the application, that health of plaintiff was not good on that day, but that reason cannot be casually made without any document. More over, pendency of civil suit for about 7 to 8 years, itself shows that, plaintiff 4 himself was not interested about expeditious disposal of the suit and on same tactics, it seems that on 7-2-2017, neither party was present nor represented by any counsel before the Court. Hence, such conduct of plaintiff cannot be appreciated, but at the same time, it also cannot be lost sight of that, on the same day, the appellant/plaintiff filed the application under Order 9 Rule 9 of the CPC. It is settled law that, instead of dismissing the civil suit on technical ground, it must be decided on the merits of the case. Hence, considering the aforesaid fact, I feel inclined to allow instant misc. appeal, subject to payment of cost of Rs. 5,000/- upon the appellant/plaintiff payable to the respondents No. 1 and 2/defendants No. 1 and 2. 9 Accordingly, this misc. appeal is allowed. The impugned order dated 28-1-2019 (Annexure A-1) passed by the 1st Addl. District Judge, Durg in Civil MJC No. 24/2017 is set aside. Application under Order 9 Rule 9 of the CPC filed by the plaintiff is allowed. The order dated 7-2-2017 passed in Civil Suit No. 27-A/2010 by the 1st Addl. District Judge, Durg is set aside and the trial Court is directed to restore the civil suit bearing No. 27-A/2010 in its original file, within a period of 30 days from the date of receipt of copy of this order, subject to payment of cost of Rs. 5,000/- by the plaintiff to the defendants No. 1 and 2 within a further period of 15 days after restoration of civil suit. 10 Learned counsel for both the parties are directed to keep their respective parties present before the trial Court on 4-4-2025, thereafter the concerned trial Court is directed to expedite the trial and conclude the same as early as possible preferably within a period of six months after restoration of the civil suit. Both the parties are also directed to 5 cooperate with the trial Court for expeditious disposal of the civil suit. 11 This Misc. Appeal is accordingly disposed. 12 Pending interim application(s), if any, stands disposed of. 13 No order as to cost(s). Sd/- Naresh Kumar Chandravanshi) Judge