Dharmraj Singh Vs Principal

3 - Ramraj Singh S/o Shri Bhairav Singh Aged About 47 Years (Name Wrongly Mentioned As Shramraj) R/o Village- Govindpur, Tahsil- Pratappur, Distt.- Surajpur (C.G.)(Plaintiff No. 2)

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4 - Krishndev S/o Shri Kalika Aged About 42 Years R/o Village- Govindpur, TahsilPratappur, Distt.Surajpur (C.G.)(Plaintiff No. 3)

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5 - Indradev Singh S/o Shri Chandrika Singh Aged About 32 Years R/o Village- Govindpur, Tahsil- Pratappur, Distt.- Surajpur (C.G.)(Plaintiff No. 4)

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... Respondent(s)

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For Petitioner(s) : Mr. Sumit Shrivastava, Adv. For Respondent/State : Mr. Dilman Rati Minj, GA.

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SB : Hon'ble Shri Justice Deepak Kumar Tiwari, J. Order On Board

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2

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06.01.2025

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This Civil Revision has been preferred against the order dated 19.09.2024 passed by the learned District Judge, Pratappur, Surguja in Misc. Appeal No.01-A/2023 arising out of order dated 27.03.2023 passed by the Civil Judge Class-1, Pratappur in connection with Civil Suit No.35-A/2012, whereby, while allowing the appeal preferred by the defendants No.1 and 2 the appellate Court has allowed the application under Order 9 Rule 13 CPC read with Section 5 of the Limitation Act and set-aside the order dated 27.03.2023. Consequently, the appellate Court has quashed ex-parte judgment and decree dated 28.04.2017 passed in main Civil Suit No.35-A/2012 and directed the trial Court to decide the lis after hearing both the parties on merits.

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Necessary facts of the case are that the present applicant along with three others have filed a Civil Suit No.35-A/2012 for declaration of title, recovery of possession and permanent injunction as also for removal of encroachment in respect of land bearing Khasra No.405, Area 3.98 Hectare situated at Govindpur alleging that land in question is their ancestral land, however, the State Authorities have made a proposal for constructing the school building and playground over the said land in the year 2010 and thereafter the same has been constructed. The suit was filed on 21.09.2012. The defendants No.1 to 4 have filed their written statement denying the averments made in the plaint. However, after filing the written statement, no one has made appearance on behalf of defendants No.1 and 2, therefore, an ex-parte proceeding was drawn and judgment and decree was passed on 28.04.2017 in favour of the plaintiffs. Thereafter, defendants No.1 and 2 have filed an

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application under Order 9 Rule 13 CPC read with Section 5 of the Limitation Act on ground that In-charge Principal, namely, Shri J.N. Prasad was suffering from some mental illness so he could not appear during the court proceedings. However, the trial Court has not accepted the said reason as sufficient cause and dismissed the application. Against the said order, the defendants No.1 and 2 have preferred Misc. Civil Appeal No.01A/2023. The appellate Court has allowed the said appeal as also the application under Order 9 Rule 13 CPC and remitted the matter back to the trial Court to decide the main civil suit on merits. Against the said order, the plaintiff has preferred this revision.

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Learned counsel for the applicant would submit that the learned appellate Court has committed an error of law in reversing the well reasoned finding of the trial Court as defendants No.1 and 2 have not shown the sufficient cause for their absence. He further submits that the appeal was allowed on the ground that the party is the State Authority though law is applicable to private person as well as the State. Therefore, impugned order is not sustainable and same deserves to be aside.

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Heard learned counsel for the parties and perused the documents annexed with the petition.

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Admittedly, the petitioner along with three others have filed the suit for declaration that subject land is private land though school building has already been constructed. Further, the judgment and decree dated 28.04.2017 was passed ex-parte because the In-charge of the defendant/Govt. School could not participate in proceedings in diligent

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manner. When the State Authority has examined the case, it was revealed that the said officer was suffering from certain medical issues relating to mental health and certain documents were also filed along with application Order 9 Rule 13 CPC, however, the trial Court has adopted hyper-technical approach and dismissed the application.

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The first appellate Court while passing the order impugned placed reliance on the judgment of Sheo Raj Singh Vs. Union of India [(2023) 10 SCC 531] wherein principles and summary of guidelines with regard to condonation of delay under Section 5 of the Limitation Act and responsibility of Officers of State while representing the case have been enunciated.

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In catena of decisions of Hon’ble Supreme Court it has been held that the words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to reply upon other circumstances anterior in time. Where substantial justice and a technical approach were pitted against each other, a pragmatic approach should be adapted with the former being preferred and substantive rights of private parties and the State are not defeated at the threshold simply due to technical consideration of delay. It is also well settled that it would be improper to put the State on the same footing as an individual since it was an impersonal machinery operating through its officers.

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In view of the aforesaid discussion, this Court is of the view that the appellate Court has not committed any error while allowing the appeal of the defendants and has rightly remitted back the matter to decide the lis after

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hearing both the parties on merits.

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Accordingly, the revision fails and is hereby dismissed .

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Sd/-

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(Deepak Kumar Tiwari) Judge

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Ajay

Dharmraj Singh v. Principal

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Dharmraj Singh v. Principal

Case brief

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