a..t~ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) W.P. (U.A. 227) N0. / f)J> / of 2009 PETITIONER/ Plaintiff v^fc%:'£^- •^^' Dharmendra Kumar, S/o Vishvanath Soni, aged about . 26 years, Occupation-Agriculturist, R/o Village- Salka (Aghina), Tahsil-Surajpur, District-Sarguja (C.G.) VERSUS v' RESPONDENTS/ Defedndants :1. i.- Gajendra Prasad, S/o Rambharos Ram, Caste-Koder, aged about 27 years, Occupation-Agriculturist, R/o Village-Salka (Aghina) Tahsil- Surajpur, District-Sarguja (C.G.) Malti Devi, D/o Mahabir, W/o Chhedi Prasad, aged about 37 years, Caste- Soni, R/o Village-Bramhapara, Ambikapur, P.S. & Tahsil-Ambikapur, District-Sarguja (C.G.) Vishvanath, S/o Indradev, aged about 60 years, Occupation-Agriculturist, R/o Village-Ambikapur, P.S. & Tahsil- Ambikapur, District-Sarguja (C.G.) State of Chhattisgarh, Through : The Collector, Sarguja, District-Ambikapur (C.G.) \^- WRIT PETITION UNDER ARTICLE 227 OF CONSTITUTION OF 1NDIA ffliimfl"i"i" ^^ HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice PrashantKymar IWishra Petitibner Respondents Writ Petition (227) No.1931 of 2009 Dharmendra Kumar versus Gajendra Prasad and others Present: Shri D.N.Prajapati, counsel for the petitioner. Shri Shailendra Bajpai with Shri F.S.Khare, counsel for respondent No.1. , ShriM.P.S.Bhatia with Shri .Manoj Jaiswal, counsel forrespondents No.2 and 3. Shri Sanjeev Agrawal, Panel Lawyer for the State/respondent No.4. Wrrt_PetLtion under Article 227 of the Constitution of India ORAL ORDER (Passed on 16th March, 2010) Heard on admission. 2. Challenge in this petition under Articte 227 of the Constitution of India is to the order dated 10-2-2009 passed by the appellate Court vide Annexure P-1 disallowing the petitioner/plaintiff's miscellaneous civil appeal and thereby affirming the trial Court's order dated 18-11- 2008 (Annexure P-3) rejecting the plaintiff's application under Order 9 Rule 9 of the Code of Civil Procedure, 1908. 3. The plaintiff's Civil Suit N6.t05-A/93 for declaration and- permanent injunction was dismissed by the trial Court on 9-1-1997 on a statement made by the ptaintiffs counsel that he does not wish to 'prosecute the suit. The application under Order 9 Rule 9 of the Code ~ 2-— of Civil Procedure, 1908 for restoration of the suit was preferred by the petitioner on 5-7-1999 along with an affidavit inter alia submitting that he has never instructed his counsel to plead no instructions or to make a submission that he does not wish to prosecute the suit and that such a statement has been made on his behalf by the counsel without any instructions and if the restoration is not allowed, he shall be dispossessed from the land and shall suffer irreparable loss. He pleaded that he was not aware about the dismissal of the suit till 10-6- 1999. It is on this date that the defendants started to propagate that the suit has been decided in their favour, the plaintiff heard about the dismissal of his suit. The petitioner/plaintiff immediately filed an application for obtaining certified copy and has moved the application under Order 9 Rule 9 of the Code of Civil Procedure, 1908 for restoration of the suit. 4. Respondent No.1 contested the application and stated that the plaintiff was not diligent in prosecuting his suit and that law does not come to the rescue of an indolent litigant. 5. The trial Court rejected the application under Order 9 Rule 9 of the Code of Civil Procedure, 1908 and refused to restore the suit. The appeal preferred by the petitioner has also been rejected. 6. Having heard learned counsel appearing for the parties, this Court is of the opinion that the learnea Courts below have committed* an error ofjurisdiction by not taking a pragmatic view ofthe submission made by the petitioner in his restoration application that he has never ^instructed hiscounsel to plead no instructions and to plead that he .-3 .y><"t)h^.. u -2. does not wish to prosecute the civil suit. It is trite law that a party to a litigation should not be made to suffer on the mistake of the counsel. In the present case, it is not a mere mistake but the order of dismissal of suit was passed on a statement made by the counsel for which he was never authorised. In such a case, the Courts below should have exercised jurisdiction under Order 9 Rule 9 of the Code of Civil Procedure, 1908 and allowed the plaintiff to prosecute his suit on merits. 7. The argument raised by learned counsel for respondent No.1 that the plaintiff was not diligent and careful in prosecuting the suit is not convincing because the plaintiff has made this statement that he is willing to continue the suit and the counsel was not authorised to withdraw the suit. 8. The impugned order is set aside. Civil Suit No.105-A/93 is restored to its original number. The instant writ petition is allowed. Sd//- Prashant Kumar Mishra Judge Gop.il