Allowed

Mittulal v. Divisional Eng. Mpeb and Anr.

Chhattisgarh HC8 Sept 2014SA/43/2000

Case brief

AI extract

What is this about?

Second appeal admitting substantial question of law regarding dismissal of suit for absence of evidence. Court held dismissal was under Order 17 Rule 3(b) not 3(a). Allowed appeal, set aside lower appeal. Suit also found non-maintainable for court fee valuation.

What did the court decide?

Second appeal allowed, sentence another below judgment set aside, direction given that trial court order was under Order 17 Rule 3(b) CPC.

Mittulal Vs Divisional Eng. Mpeb and Anr. — Service and Employment | Chhattisgarh HC (2014)

¶1

glqwgr " "

¶2

IGH CO	: ” ‘‘ URT ^{OF CHHATIISGARH AT BILASPUR} Single Bench Honble Shri Juslice ^{T.P? Sharma}
	Second ^{Appeal No.43/2000} \|
APPELLkNT	Mnmlal
Pl g REsPoNmENTs amhff	Vs 1. Divisional Engineer, M.P. ,
fé i Deendn’rs	Elec’rriciTy ^{Board, Pendr‘a Road.} 2. Junior Engineer, ^{MPEB, Marwahi.}

¶3

¶4

Presem ; ‘ Mr^AwadhTpat rihi AdvocaTe for^Theappellan f Mr‘ MaJid A li d voca‘re on behalf of Mr‘ AS Geharwar‘ Advoc’ear for The ‘ “responden’r " s

¶5

JUDGMENT (O9^O92014)

¶6

1 This second appeal fi led on behalf^{ofTheappellan} T agnsTai The J udgmenT & decree daTed 22.7.2000 passed by The 4*h AdionaldTi DisrITcT Judge, Bilaspur Link^{CourTPendraRoad} in Civil Appeal No.9-A/2000^affirming

¶7

‘ The JudgmenT^{&decreedaTed4121999passedbyThe} CIVil Judge^Class- II Pendra Road in CiVil SuIT N072^A/98 has been admiTTed for consideraTion^{onThefollowmgsubsTanTialquesTlonsoflaw,-}

¶8

WheTher The Trial CourT has commiTTed an illegaliTy by

¶9

"‘1. dismissing The suiT in absence of evidence of The plainTiff/appellanT^{whenTheparTywas} noT presenT^onThe daTe of^hearing?

¶10

1. WheTher^The lower appellaTe CourT has commiTTed an illegaliTy by affirming The judgmeni‘ paSSed by The Trial CourT dismissing^ThesuiT in absence^{ofevidencewhenThe} appellanT / plainTiff was noT presenT on The daTe of heari ng?"

¶11

. As per plainT allegaTions and documenTs filed along wiTh plainT, The appellanT^{wasenjoyingsupplyofelecTriciTymThebasisof} elecTric line insTaIIed by The respondenTs The respondenTs^demanded Rs 34064 12 as elecTrICiTy charges and alSo ThrcaTened The appellanT for

¶12

palse disconnecTion of elecTric supply. The appellanT filed CiVIl su1T for

Page 2 of 3

S.A. No.43/2000

l \

declaraTion of demand nofice null, void and ineffecfive and also fo r pernem‘ma injunction againsf disconnecfion of elec’rricify supply. Case was f ixed for evidence on 04.12.1999 and on ’rha’r day boTh fhe parties were nto prsente and one applicionaf under Order 17 Rule 1 CPC for ;

¶17

adjornmentu was fed.il Since‘lasf canceh for evidence was earlier provedid^{foTheappellanf,fhefrial} Cour‘l’ dsmissedi The said appIicaTion i

¶18

for djournn’r and in absence of any evidence also dismissed fhe sui t ame

¶19

Sam was also affiredm by fhe lower appeliafe Courf. e i

¶20

. Headd learned counsel for The parfies^and perused^The judgentsm^and l

¶21

recodr of The^,CourTs below.

¶22

. Leare’d‘counseln for ThemppellanTs submiTs^fhaT in absence of evidence The Trial CourT oughT noT To have dismissed The suiT and The l ower applaTeel CourT oughT noT To have dismissed The appeal. BoTh The CourTs below oughT To have provid ed opporTuniTy of leading evidence To The applantel

¶23

. On The oTher hand, learned counsel for respondenTs opposed The appeal and submiTs ThaT cause-TiTIe requires some formal^{amendmenTinThelighT} of fu rTher assgnmenT/diviionis of M.P. ElecTriciTy Board. He furTher subiTsm ThaT virTually T he judgmenT passed by The Trial CourT was under Ordre 17 Rule 3 (b) & Rule 2 and noT under Order^17Rule3 (a)^ofTheCPC,

¶24

- Thefore,re The appelnTla was required To proceed in Terms of Order 9 of ‘

¶25

The CPC buT insTead of filing appropriaTe peTiTion The applanTel has sraghTwayTi filed firsT aealpp and Thereaf'l'er This appeal.

¶26

. As per The judgmenT passed by The Trial CourT, aT The Time of passing The judgmenT^boThThe parTies^werenoT prenTse^and lea‘rned counsel for The applanTel was presenT only f or seeking adjournmenT^andThesaid prayer for adjournmenT was^{dismissedwhichcannoTbeconsideredas} presence^of The parTies for passing any order under Order^17Rule3 (a)^ofTheCPC. IT r

¶27

was oynl The order under^Order17Rule3 (b) adn^Order17Rule2 <Si Order 9 of CPC was applicable buT iTensad of proceeding under Order 9 of CPC, The‘appellanT has fdile firsT appeal and challenged The legaliTy and proieTypr^ofTheorder passed^{byTheTrialCourTonThe} ground^ThaTThe suiT has been dismissed in absence of any evidence. dismissal of YirTually,

Page^3of3

‘ ‘ i" :§“‘W"emwmq

S.A. No.43/2000

a uwmms

suit was^{asaresuh'ofabsenceofplainfiffandno‘rin‘absenceofevidence.} ’rhe orders especially The Cour’rs^arerequired ‘ro be cau‘rious in passing under^Order17CPC On fhe date^of passing^{Theorderfheplainiiffwas} his counsel^was present^{butonlyforseekingadJournmentand} not present 'not suit Virtually,^the parties^{havenotadduced} for proceeding^mciwl . any evudence therefore the order^{wasonlyunderOrder17Rule3(1)(b)} di Order^{9ofCPCwasapplicablebutonelme} of CPC‘and^Order17Rule2 of the order that In abSence of ev1dence the suut is dismissed i _ confus‘ion^{andwasappealed} before^the lower appellate^Courtwho also dismissed^{theappealwhichwasWithoutapplicationofmindwhetherthe} order was^{underOrder17\Rule‘3(a)or(b)ofCPCandtherebyboththe} courts^{belowhavecommittedillegality.}

¶33

;mzvsuh

¶34

of law No.1^&2 are decided as . ConSequently,^the substantial question of law - On the basis of finding on the substantial questions positiVe. formulated^{fordecisionofthisappeal,theappealdeservestobeallowed} and it‘ is hereby^allowed. Judgment passed^{bythelowerappellateCourtis} hereby^{setasidewithadirectionthatthejudgmentpassedbythetrial} COUrt was^{onlyunderOrder17Rule3(b)andnotunderOrder17Rule3(a)} of Order‘9^{CPCwasapplicable} in the of CPC^andtherefore provisions caSe for setting as1de the^order of dismissal However it is preSent pertinent^{tomentionherethatsUItasframedwasalsonotmaintainable} because^{itwasthesUItfordeclarationofdemandnoticeofRs34064/—as} null, void^{andineffective.Virtually,theplaintiff'ssuitwasforavoidance} in demand^{notice,therefore,hewasunder} of payment^ofdemandmade obligation‘to^{valuethesuitasperamountofdemandnoticeandtopaythe} In that^{eventthesuitwas} also beyond court fee^{uponsuchvaluation.} i.e. Court^{of‘civilJudgeClass—II,} pecuniarmisdieiion^{ofthetrialCourt} l Pendra^Road.

¶35

The parties^{shallbeartheirowncostofappeal.} 9.\ Advocate’s^{fee,ifcertified,asperschedule.}

¶36

10. Decree^{bedrawn-upaccordingly.}

¶37

.m
Sd/J 1,
l T' P- Sharma
Judge

Mittulal v. Divisional Eng. Mpeb and Anr.

Case brief

What is this about?

What did the court decide?

Mittulal v. Divisional Eng. Mpeb and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chetanram Vs Lalcharan Ram and Others

Mahesh Rawat and Others Vs Rudra Prasad Yadav and Others

Ramdeo and Another Vs Chaturi and Others

Smt. Gendi and Ors. Vs Sodhiram and Ors.

Ved Prakash Sharma Vs Asha Devi and Others

Batai and Anr. Vs Muthu Ram and Ors.