Hari Prakash v. Bal Kishan & Anr.

1. The petitioners Hari Prakash in CM(M) No.42/2013 and Vmod Kumar, Mukesh Kumar, Naveen Kumar & Parveen Kumar in CM(M) No.45/20 13 before this Court were impleaded as defendants in Civil Suits No.144/01/12 and No.146/03/12 respectively. The grievance of the petitioners is that respondent no. 1, who was plaintiff in the above noted two suits, had lost interest in the suits, which is reflected from the copies of the 2013:DHC:8289 S rl^) order sheets/proceedings of learned Trial Court.

2. The petitioners are invoking the jurisdiction of this Court under Article 227 of The Constitution of India praying for quashing the order dated 13.08.2012 passed in both the suits whereby learned Trial Court, instead of dismissing the suits for non-appearance of the plaintiff, consigned the suits to Record Room sine die, giving liberty to the plaintiff to revive the same by moving appropriate applications to this effect.

3. The orders impugned in these two petition, which are identically worded, read as under:- "Suit No. 144101112 & 146103112 13.08.2012 Present: None for the plaintiff Sh. Mukesh Bhardwaj, counsel for the defendant. Court notice issued to the plaintiff received back unserved due to incorrect address, In view of the same, the suit of the plaint iff is stayed sine die as he has not provided the correct addresses to the Court. The plaintiff is at liberty to revive the same as and when appropriate application for revival of the same moved on behalf of plaintiff File be consigned to the record room. Sd/- Civil Judge/Central-04113. 08.2012"

4. The petitioners are feeling aggrieved for the reason that registered sale deeds dated 25.11.1999 were executed in favour of the petitioners by respondent No.1 and his brother respondent No.2. Later on, respondent No.1 allegedly turned dishonest and in order to wriggle out of the said sale deeds, the civil suits were filed in the year 2000 seeking cancellation of the S D\-k sale deeds dated 25.11.1999. The land, in respect of which the sale deeds were executed, stands acquired by the Government but petitioners have not been able to receive the compensation awarded under Land Acquisition Act because of the alleged frivolous suits filed by respondent No. JL and even when the respondent No.1 has failed to appear, the suits are still pending, thus adversely affecting the rights of the petitioner to receive the compensation. Learned counsel for the petitioners submits that learned Trial Court should have proceeded under Order IX Rule 8 CPC by dismissing the suits for non-appearance of the plaintiff.

5. I have considered the submissions made by learned counsel for the petitioners. Notices of the petitions were sent to the respondents. While respondent No.1 failed to appear despite service, process sent to respondent No.2 received back unserved with the report that the wife of respondent No.2 informed, "the respondent No.2 has passed away in the year 2006."

6. Order IX Rule 8 CPC provides the procedure where on the date of hearing, the plaintiff fails to appear and only the defendant appears before the Court. Order IX Rule 8 CPC reads as under 'Order IX - Appearance of parties and consequence of nonappearance xxx xxx xxx xxx Rule 8. Procedure where defendant only appears.- Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.' S

7. The copies of the proceedings before learned Trial Court placed on record by the petitioners, reveal that none had been appearing on behalf of the plaintiff (respondent No.1 herein) for many preceding dates of hearing till the case was transferred. The Transferee Court issued Court notice to the plaintiff and even the Court notice received back unserved. In the given circumstances, the learned Trial Court should have proceeded under Order IX Rule 8 CPC thereby dismissing in default the suits of the plaintiff. There is no provision in Code of Civil Procedure under which the Court could have adjourned the case sine die and waited for the plaintiff to appear before the Court at his convenience, may be after many years to pray for revival of the suit.

8. Since the impugned orders have not been passed in accordance with the provisions contained in Order IX Rule 8 CPC, the same are liable to be set aside.

9. Accordingly, the impugned orders dated 13.08.2012 passed in Civil Suits No. No. 144/01/12 and No. 146/03/12 are set aside. Learned Trial Court shall call for the files of Suits No. No. 144/01/12 and No. 146/03/12 and proceed with the matter in accordance with the procedure prescribed by law. The petitioners are directed to appear before the learned Trial Court on 25.02.2013.

10. Both the petitions stand disposed of

11. Copy of the order be given dasti.

PRATIBHA RAN!, J FEBRUARY 13,2013 'sri