In a miscellaneous appeal preferred before the Madhya Pradesh High Court by taking exception to an order dated 02-09-2024 by the IX District Judge, Indore (M.P.) whereby an application moved under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) was dismissed, a Single Judge Bench of Justice Vinay Saraf set aside the impugned order and restored the matter to its original number for further consideration.
A petition was filed under Section 307(5) of the M.P. Municipal Corporation Act, 1956, seeking removal of alleged illegal construction raised by the appellant, wherein respondent 2 alleged that the appellant had raised construction contrary to the sanctioned map and by laws of the corporation. A complaint was made to the Commissioner, Indore Municipal Corporation regarding the violation and as the municipal corporation failed to take any action against the applicant, respondent 2 filed an application under Section 307(5) for removal of the alleged illegal construction, pending before the trial court.
The hearing was fixed on 28-06-2010, when the appellant and his counsel remained absent, and the case proceeded ex parte, being finally decided against the appellant on 29-09-2010. When the counsel for the appellant came to know about the same on 05-10-2010, an application under Order IX Rule 13 of CPC was moved on the ground that two cases, both filed by respondent 2, were listed before the trial court on 28-06-2010, and that the Junior Advocate assisting the appellant’s counsel had noted the date of a wrong case. The Trial Court, by the impugned order dated 02-09-2024, dismissed the application on the ground that the reason assigned was not believable.
Upon considering the arguments and perusing the record, the Court noted that it was not in dispute that two cases were pending in the same court on 28-06-2010, filed by respondent No. 2. The junior advocate appeared as witness 2 and supported the applicant’s case and it was also found that an application was wrongly filed by him under Section 151 of CPC in MJC No. 12/2010, which had been prepared for filing in MJC No. 08/2009. Hence, the Court found the submission to be believable.
The Court stated that this was a material fact which had been clearly ignored by the trial court and said that it is trite law that for recalling and setting aside an ex parte order, the applicant should show sufficient cause. Referring to the Supreme Court’s judgment in Parimal v. Veena Alias Bharti (2011) 3 SCC 545, wherein it was held that ex parte order cannot be set aside unless sufficient cause for non-appearances is shown, the Court stated that the reason assigned by the applicant was bona fide and that it was a mistake committed by the junior advocate for the applicant’s counsel.
Holding that a litigant should not be made to suffer due to the mistake committed by his lawyer, the Court held that the trial court had committed an error in dismissing the application filed under Order IX Rule 13 of CPC. Consequently, the present appeal was allowed, and the impugned order was set aside. The order dated 29-09-2010 was also set aside, and MJC No. 08/2009 was restored to its original number for further consideration from the stage at which the case had proceeded ex parte against the appellant.
