g3 HIGH COURT OF CHHATTISGARH AT EILASPUR Writ Petition (Art.227} No.3502 of 2011 Petitioner Dharam Singh Kurre, Aged about 65 years, S/o Late Kalkatia Kurre, R/o Near the Showroom of Digjaam, Pandri. Raipur. Chhattisgarh. Versus Respondents 1. State of Chhattisgarh, Through District Magistrate, Chhattisgarh. 2. Smt.Kusum Bai, D/o Keshav Prasad Shrivastava. 5 3. Avinash Kurre, Slo Late Dr.R.P.Kurre, Both are resident of Sahapura, Gudiyari. Raipur. Chhattisgarh. 4. Comissioner, Nagar Nigam, Raipur, Chhattisgarh. (Writ Petition under Article 227 of the Constitution of India) Mr.Sunil $ahu, counsel for the petitioner. Mr.Vinod Tekam, Panel Lawyer for respondent No.1/State. Mr.Sameer Oraon, counsel for respondents No.2 and 3. Mr.H.B.Pgrawal, Senior Advocate with Mrs.Meera Jaiswal, counsel for respondent No4. (SB: Hon‘ble Mr. T.P. Shanna, J.) ORDER (15—11-2011) 1. By this writ petition under Article 227 of the Constitution of india the petitioner has chailenged the legality and propriety of the order dated 29.4.2011 passed by the Fourth Additional District Judge. Raipur. in Misc.Civil Appeal No.12/11, affirming the order dated 11.11.2010 passed by 6*" Civil Judge Class-i, Raipur, in MJc No.4s/os, whereby the 6‘“ Civil Judge Class‘l has dismissed the application filed by the petitioner under Order 9 Rule 9 of the Code of Civil Procedure on the ground of time barred and non—explanation of delay in filing said application. . l have heard learned counsel for the parties, perused the order impugned and other documents filed on behalf of the petitioner. ,2, @ 3. Learned counsel for the petitioner frankly admits that couhsel fof the petitioner and petitioner were not cautioned and diligent about their case which resulted into dismissal of suit for non-prosecution. Learned counsel submits that the petitioner has filed the suit for permanent injunction and mesne profit and if opportunity is not provided to the petitioner, then irreparable loss would be caused to the petitioner. 4. On the other hand, learned counsel for respondents No.3 and 4 opposes the petition and submits*t’l12t this is not the case where counsel has noted wrong date and suit was dismissed prior to such date. but as per claim of the petitioner counsel has noted date 26.1.2007 and suit was fixed for 26.2.2007 and after one month of such noting of date suit was dismissed shows that the petitioner was complete negligent in prosecuting the suit. 5. Considering the fact that counsel for the petitioner was negligent and has not taken precaution in prosecuting the suit. punishment to party would not be just and opportunity of prosecuting the suit would be just and proper to the petitioner. 6. Consequently, the writ petition is allowed. subject to payment of cost of ' Rsr1000l- to each of the respondents totai Rs.4000/- within 15 days from today. Order impugned is hereby quashed and Civil Suit No.31 -N02 is hereby reswmd in “5 Originai number. No order as to costs. Sdl- T.P. Sharma Judge