9 HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition i227) No. 1632 0f 2009 PETITIONERS 1. Smt. Mukta Gohil, widow of Late PLAINTIFFS Bishanji Bhai, 2. Vijay Kumar Gohil (wrongly writtenas Gohit), son of Late Bishanji Bhai, Jayant Kumar, son of Late Bishanji Bhai, 4. Suresh Kumar, son of Late Bishanji Bhai, A11 resident of ’Pachripara, Durg, Tahsilv and District Durg (Chhattisgarh), 5. Smt. Hansaben Taank, Wife of Narayan Bhai, resident of Buddheshwari Bazar, Korba (Chhattisgarh). VERSUS RESPONDENTS 1. ' Ajit Singh Gupta, son of Dau Bahadur DEFENDANTS Singh Gupta, resident of Apapura, Durg, Tahsil and District Durg (Chhattisgarh), 2. Pandit Ramkhilawan Pandey, son of Kaushal Prasad, Dwarika Prasad, son of Ram Sanehi Dani, Both respondent no. 2 85 3 resident-of Paehripara, Durg, Tahsil and District Durg (Chhattisgarh), Shivlal Bhai Adthiya, son of Lalji Bhai, Praveen Bhai Adthiya, son of Lalji Bhai, Babulal Adthiya, son of Lalji Bhai, Dhirajlal Adthiya, son of Lalji Bhai, A11 respondent no. 4 to 7 resident of Pachripara, Durg, Tahsil and District Durg (Chhattisgarh), 8. Smt. Pratibha Dani, wife of Veer Abhimanyu Dani, resident of Kasaridih, Durg, Tahsil and District Durg (C.G.). Q®4>01 v PETITION UNDER ARTzI/CLE‘2'27 OF CONTITU'I‘ION OF INDIA. (SB :Hon’ble Mr. T.P.Sharma, J.) Present:— Mr. H.B.. Agrawal, Sr. Advocate, with Ms. Itu Rani Mukherjee, Advocate for the petitioners. Mr. Amiyakant Tiwari, Advocate for the respondent No, 8 None for the respondents No. 1 to 7. ORAL- ORDER (Passed on! 17/08/2010) Heard. . Order dated 30/ 12/2608 passed by 5th Civil Judge Class-2, Durg in M.J.C. No. 25/2008 and order dated 16/4/07 passed by 2nd Civil Judge Class—l, Durg in M.J.C. No. 29/2006 perused. Vide order dated 16/4/07 after refusal of adjournment application filed on behalf of the petitioners M.J.C. was dismissed in absence 0f the petitioners. Restoration application was filed by the petitioners which was dismissed Vide order impugned on the ground that order dated 16/4/07 was under Order 17 Rule 3 of the C.P.C. therefore any application under Order —9 of the C.P.Ct was not maintainable. Learned counsel for the petitioners submits that order dated 16/4/07 clearly reveals that in absence of the party Court has dismissed civil M.J.C. therefore the application under Order 9 of the C.P.C. was maintainable but Court below has illegality rejected his application. On the other hand, learned counsel for the respondent No, 8 opposed the petition and submits that on'the date of hearing of the M.J.C. petitioners were duly represented by their counsel therefore order passed by the Court under Order 17 Rule 3 of the C.P.C. and in su’c/h eases petition under Order 9 of the C.P.C. was not maintainable. 5. Both the orders clearly reveals that on the date of hearing the petitioners were not present his counsel has not actively participated in prosecution of the petition but has merely applied for adjournment. In these circumstances order dated 16/4/07 passed'by 2nd Civil Judge Class—1 Durg was only Order 17 Rule 2 of the C.P.C. and application under Order 9 of the C.P.C. was maintainable but Court below has illegality dismissed the petition Filed on bchalf of the petitioners. Consequently, this petition is allowed. order dated 30/ 12/08 passed by 5th Civil Judge Class-2, Durg in civil M.J.C. No. 25/08 is hereby set—aside. Case is remanded back to the Court of 5th Civil Judge Class—2, Durg for providing an opportunity of hearing to the parties and to pass the order afresh as application under Order 9 C.P.C. is maintainable. 6. Parties are directed to appear before the 5th Civil Judge Class—2, Durg on 16/9/ 10 for further progress of the case. 7. No order as to costs. Sd/— T.P Sharma Judge