IN THE HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH1 Smgte BeneS CIVIL REVISION No. J 2006 PETITIONERS Defendants o ^'^J RESPONDENTS Plaintiff ^l. Sunder Bai W/o Champalal Jain aged about 60 years, 2. De^pchand aged about 45 yeas S/o Champalal Jain 3a. Smt. Santosh Bansali aged about 37 years W/o Todarmal Bansali, ^3b Amit Bansali aged about 14 years S/o Todarmal Bansali 3c Mukesh Bansali aged about 10 S/o Todarmal Bansali 3d Sumit Bansali aged about 8 years S/oTodarmal Bansali, J-. Bhagchand aged about 35 years S/ Campamal Jain 5. Lunkaran aged about 30 years S/o Champalal Jain 6. Santosh aged about 27 years S/o Champalal Jain All R/o Village DoundiLohara, Tahsil Dondilohara, Distt. Durg. 7. Smt. Dhelabai aged about 36 years W/o Mahavir Sancheti R/o Sanichari Bazar, Durg. 8. Smt. NirmalBai, aged about 32 ' years W/o Narendra Bardiya, R/o Sadar Bazar, Distt. Dhamtari VERSUS q 1. Jagdev Singh, aged about 60 <j_- years, S/o Raghunath Singh Thakur, R/o Dondilohara, Distt. Durg. '? 2. The State of Chhattisgarh. CoJU^^r,, 'b" REVISION PETITION UNDER SECTION 115 OF CODE OF CIVIL PROCEDURE 1908 HIGH COUftT OF CHHATTIS6ARH AT BILASPUft Civil RevJsionNo. 01/2006 Sunder Bai ond Others Vs. Jagdev Singh and another Single Bench: Hon'ble Shri EMUp Raosahab Oeshinukh. j7 PostforOrder; j^ ,12.2006 Sd/- Dilip Raosaheb Deshmukh Judge lci .12:2006 ^ ^iT ^ HI6H COURT OF CHHATnS6ARH AT BIb^SPUR Before: Hon'ble Shri Justice Dilip ftaosak^b Dcshmukh Rwision No.01/2006 Sunder Bai and Others Vs. Jcgdev Singh ond anotfier Shri Parag Kotecha, leamed Counsel with ^iri Ancnd Shukla, Counsel for •the petitioners/defendorits. Ms. Puja Shrivastava, teamed counsel for the respondent hto.l/plaintiff. OftbER (Delivered on Ihis i^H~day of Decemter 2006) This Civil Revision fe directed against llie onter ctated 30-08-2005 passed by the Additional District Judge, Babd, District-Durg in Misceltoieous Cwit Appeal No.10/2001 whereby tiic order of rejection of pkxjntjff's application dated il-09-2001 fited under Order-9 Rule-9 of C.P.C., by th& 2nd Civil Judge Class-H, Bolod, Oistrict- Durg (C0.) in Misc. Civil Suit No.04/2000 was set aside, 2. Brief facts are Ihat m Civil Suit No.04/2000, counsel for the respondent/plaintjff sought an adjoumment on 27-03-2000 on 1tie ground of illnes$ of the plaintiff. Th« leamed Lowep Court- noted that Itie Civil Suit was pendw^ since 1991 eand the ptamtiff was not taking any initjative in expeditious disposat. However, considering the nsason assigned, it gnmted an adjoummwit white direGting the plainttff to remain present on 07-04"2(XX) to adduce evideaicc. It wos also directed orUin^ that the applioation under^26 Rule-9 of C.P.C. for demapcation of Ihe suit land CE.A.No.21) would be decided after recording the plaintiff's evjdence. 3. On 07-04-2000. the plaintiff was present with counsel Shri J.P,Kannoje and prayed that the application CE.A.No.21) be decided fir«t. The leamed tower Courfr rejected Ihe proyer and directed the ptaintiff to begin his evidence. Plaintjff ogam prayed that his appticatjon (I.A.No.2t)under Order 26 ftufe 9 C.P.C. be disposed of first as he was ready to argue on Ifiat apptication. Rejecting the said pnyer, the lower Court- directed the plaintiff to begin hte evjdenee. However»•tfie ptaintiff declined to do so and stated that he had engaged a new counsel Shri Bhardwaj who was not present and he had filed Vakalalnama of Shri Bhardway ofi the same doy i.e. 07-04-2000. The (eamed lewer Court declined to grant an adjoumnient and passed anorder dismisstn9 the suit under Order-17 Rute-2 of C.P.C. 4. The plaintiff preferred an applicationunder Order-9 Rule-9 of C.P.C. for restoration of the suit. The teamed Civil Judys Cfass-II, Balod, &istrict-t>ur9 dismissed 1tie sajd d^tlicatjon on the ground that there was no sufficjent couse for the plaintiff for not producing evidence on 07-04-2000. Aggrieved by -the said order, the pldntiff/respondent No.l preferred a Miscelhneous Cwit Appeal No.10/2001 in the Courfr of Additional District Judge. Batod, District-Durg. By the impugned order, this Miscellaneous Civil Appeal was allowed on the ground that the lower Court- ought to have decided the flpplication ynder Order 26 Rute 9 C.P.C. for the demarcation of 1+ie suit land before recording evidence of the plaintiff. It was atso observed that the Civil Judgs, Ckxss-II, Balod ought to have considered the fact that ^iri Bharadwaj, a rww counal engo^ed by the pbintiff was <dso not present. It also held that since the Jower Court- had passed an order of dismissal of suit under Order-17 Rute-2 of C.P.C.. a lenient view grantmg onother opportunity ^-o tfie plaintiff to adduce evidence ought to have been taken. Consequentjy, the order dated 11-09-2001 passed by the Hnd Civi( Judge Class-EC, Balod, bistrict Dur9 in Misc. Civil Suit No.04/2000 was set aside and the Civil Suit No.l87-A/1998 was restored with a direction to the lower Court- togrant a last oppor'hinity to the plaintiff to addyce evidence. Aggrieved by the aad order, the defendants/petitioners have preferred this Civil ftevision. 5. ^iri Parag l&techa, teamed counsel for the petitioners contentted that on 07-04-2000, the leamed Civil Judge Ctass-IE, Balod, Distrkit- Durg ought to have proceeded undbr Order-17 Kule-3 of C.P.C. and not under Order-17 Rule-2 of C.P.C. since despite a clear direction giwn by the Courl- on 27-03-2000,the plaintiff. though present. had faited to begin his evidence. ReJwnce was placed on a Ml Bendi Decision rendered by the High Courl- of Madhya Pradesh In Ramanio Morottnw and Others Vs. Shontibai widow of Madhwao and othcw1. On this premise, it was contended that Ihe inyuyied order pasad by Ihe leamed Additional District Judge, Balod, District-Durg was contrary to law and was liable to be set oside. On the other hond, Ms. Puja Shrivastcxva, leanied counsel for the reqaondent No.l/ploBntiff aryiing in ajpport- of the impugned order contended that smce the feamed Civil Judge Class-II, Balod, District-Durg had exercised its discretion not to proceed under Order-17 Rute-3 of C.P.C. and to dismiss the suit under Order-17 Rule-2 of C.P.C., the impugned order granting a tast and final opporhjnity to the plountjff to adduce evidenoe was in coirformity with the princjples of natural Justice. 6. Having considered rival submissions, I haw perused the documents onnexed by the petitwrwr with -this CiviJ Revision. Annexure P/2 is cn flpplication fited by the petitioner under Order 9 Rute 9 C.P.C. 1. 1977-M.P.L.J.- Poge Number-364. which oqilt'citly diows that there was a serious djspute reigardmQ demarcation of the suit hnds in area 9 decimals. A perusat of the ord&r sheet dated 27.03.2000 in Civil Suit No.l87-A of 1998 would show that the pbintiff had filed an application under Order 26 Rute 9 C.P.C. for demarcation of the suit kxnd as •riiat woukl have clinched Ihe j^ue (irismg in the Civil Suit. It would also appear that on 07.04^000 Ifie plawitiff agam requested the trial Court- that he wos prepared to argue on the application. Looking to -the rwiture of the aiit, the leamed Additional District Judge, Balod was of the opinion that the trial Court ought to have considered the application under Order 26 Rule 9 C.P.C. before proceeding to record evklence since demoirca'tion of Kie arit kmd would have assisted the Court in coming to a right concJusion by project-ing the factual locart'ton of the suit hnd. It also appecu's that the plaintiff had filed Vakatatnama of Advocate Shri Bharadwaj on 07.04.2000 for Itie first time and had also proyed for on adjounwnent on •this ground. 7. It is true that the plaintiff was present with counsel Shri J.P.Kannoje on 07.04.2000 and on an earlier date he was directed by the Court to produce evidence on 07.04.2000. Although the leamed Civil Judge Chss-H coutd have proceeded under Order i7 Rule 3 C.P.C., yet tt chose to proceed under Order 17 Rule 2 C.P.C. In this view of the matl'er, -Hie argument adyanced by Shri Parag Kotecha, teamed eounsel for the petitiwer that snice the trkil Court erroneously proceeded under Order 17 Rute 2 C.P.C.. Ihe appltcation under Order-9 Rute-9 C.P.C, would not Ife is umicceptable. I am fortified m my view by a decision rendered in 6ovardhan Badrilal Mahdjan and anoth«* Vs. 6a»wsh Balkrishna beshmukh2 . In that case, the suit was dismissed under Order-17 Rute-3 of C.P.C. for defautt of the appeNcnt ewn though 2.1962-M.P.L.J-Page Numbcr-325 provisions of Order-17 Rute-2 of C.P.C. were more oppropriate. It was held that the Appelhte Court- could not treat dismissal as one under Order-9, rute-8 read with Order-17, rule-2 of C.P.C. and set it <xside uncter Order-9, rule-9 of C.P.C. It was observed as under: "If a Court pirports to act under wiy ^pecific provision of law the decision has to be j^ed with reference to that provision md the forum which examines •Hw correctness of that dedston h<» also to be detennined with reference to that provision. It is vriiat a Court actually does »rihidi deterniines the forym <md 9Jves juri^liction to the cypellate or revisional Coirt and not what it ou9ht to have done. Consequently where a decree has been passed expressly under a specific provision of the Civil ProcediB-e Code, however erroneously, the remedy is as provided by th<rt provision viz. by an appeal or revision. A.I.R. 1954 M. 222. Foll,; A.I.R. 1927 Lah.562 (1), AJ.R. 1923 Pat.223 and AJ.R.-1954 Pepsu 55, Rel." 8. TTie only point that remains for considerotion is whether the leamed Additionat District Judge erred in ajlowing the Misc. CiviJ Appeal No.IO of 2001 and groaiting one final opportunity to the plaintiff to produce evidence. TTie leamed A.b.J. rightly took into consideration the fact that the application under Order 26 Rule 9 filed by the plaintiff ought to have been considered first since demarcation of the suit lcnd would have clinched the issue involved in -tiie suit. In this view of the maHer, the welt merited order possed by the leamed Additional District Judge, Balod granting a last opportunily to the ptaintiff to adduce evidence connot be faulted with. 9. Jjr\ the result, this Civil Revision bemg wilhout merit fails and is accordingly dismissed. The leanwd Civil Jud<^, Class-IE, Balod is directed to oqaeditiously disqaose of Civil Suit No. 187-A of 1998 preferodbly withm six months from today. The R^istry is directed to send acopy of tht's order to the leamed Civil Judge, Class-II, Balod. Sd/- Dilip Raosaheb Deshmukh Judge