IN THE HON’BLE HIGH COURT OF CHHATTISGARH “919A BILASPUR W. . No. u 20 10 WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PETITIONER K’ Mahendra Kumar Mishra PidvHxXq'V S/o. Rameshwar Dayal Mishra, Aged about 67 years, R/o. Village — Boier Kachhar, Revenue Circle Baloda, Tah. Kawardha Distt.— Kabirdham (C.G.) VERSUS RESPONDENTS / .1. State of Chhattisgarh, D®$awqw¥ Through: Collector, Kabirdham Kawardha, Distt.— Kabirdham (C.G.) /2. Basanta Bai Wd/o. Sukul Gond, aged about 7O year, R/o. Village Boier Kachhar Tah. Kawardha, Distt.— Kabirdham (C.G.) “’3. Sarpanch, Grampanchayat Kabratola, Tah.— Kawardha, Distt.- Kabirdham (C.G.) HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble Shri Justice Prashant Kumar Mishra Writ Petition (227) No.964 of 2010 Petitioner Mahendra Kumar Mishra verSUS Respondents State of Chhattisgarh and others Present: Shri J.K.Shastri, counsel for the petitioner. Ms. Sangeeta Mishra, Panel Lawyer for the State/respondent No.1. Writ Petition under Articie 227 of the Constitution of India ORAL ORDER ‘ t (Passed on 8m March, 2010) Heard on admission. 2. The State of Chhattisgarh/respondent No.1 was proceeded ex parte in the suit on 15—9-2004. An appiication med by respondent No.1 for aiiowing it to participate in the proceedings has been allowed and it . has further been directed that respondent No.1 should file its written statement and participate in the proceedings. Learned counsel for the petitioner submits that such a prayer for tiling of written statement was never made by respondent No.1 and application for setting aside the ex- pan‘e proceeding after such a long delay should not have been allowed by the trial Court. 3. 'On perusal of the documents appended to the writ petition, this ”‘ . Court is “unable to accept the argument advanced by learned counsel F/for the petitioner. The trial Court has observed that the Advocate, who \ l 7 is presently working as Government Advocate and appeared for respondent No.1, was earlier counsel for the plaintiff/petitioner, therefore, on the memo issued by the trial Court to the Collector, another Government Advocate was appointed for appearing on behalf of respondent No.1 and thereafter the subject application has been moved for setting aside the ex pan‘e proceeding. It has also been observed by the trial Court that merely because of the default committed by the Government Advocate, the State/respondent No.1 should not be made to suffer and that an opportunity should be granted to the State/respondent No.1 in the larger public interest to file written statement. 4. The reasoning assigned by the trial Court appears to be just and proper. lt is settled law that a party to a proceeding’ should not be made to suffer for the lapses committed by the counsel. 5. Learned counsel for the petitioner has further argued that provision of Order 9 Rule 9 of the Code of Civil Procedure, 1908 is not applicable and yet an application mentioning this provision has been allowed by the trial Court, which is illegal. He also argued that there was no prayer for setting aside the ex parte proceeding or for giving an opportunity for filing written statement. ‘4 6. On perusal of the subject application and the impugned order dated 4-2-2010 (Annexure P-5), it appears to this Court that the entire application has to be read as a whole and only the prayer cannot be \ read in isolation to appreciate the tenor and‘intent of the party, who is ‘ moving the application. Mere mentioning of wrong provision of law does 7. stage. ~3,_ WMWMT Prashant Kumar Mishra not denude the Courts of their powers and jurisdiction, which they otherwise possess to afford opportunity of hearing to the parties, pass orders on merits and do complete justice between the parties. This Court does not find any paipabie or manifest error of jurisdiction committed by the triai Court in exercise of its jurisdiction. The present writ petition faiis and is hereby dismissed at the admission