•V .A -- (.o ~~~~~~~^~~ ^.^L 6.r -y IN THE HIGH COURT OF CHHAmSGARH AT BILASPUR CIVIL REVISION N0.^2 OF 2010 CIVIL REVISION UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURB 1908 APPLICANT ION-APPLICANT N0.1 'in m,c.s. >io.j-n|ityt>9 T~ ^.^s^ ^s^"' ^-••""- NON-APPLICANTS APPLICANT NON-APPLICANT N0.2 NON-APPLICANT / 0.3 Prasad Dubey son of Late Jageshwar Prasad Dubey, Advocate, aged about 73 years, R/o Jageshwar Bhawan, Madhuban Road, Dayalband, Bilaspur, Tahsil 8s District Bilaspur (Chhattisgarh) PLAINTIFF IN CIVIL SUIT /• VERSUS Goverdhan Prasad Agrawal, son of late Maluram Agrawal, aged about 53 years, R/o Bilha, Disbrict Bilaspur (Chhattisgarh). DEFENDANT No.l IN CIVIL SUIT Bhagwat Prasad Tiwari @ Ramesh KumarTiwari, aged about 44 years, R/o Bade Koni, near Gayatri Mandir, Bilaspur, Tahsil 8s District Bilaspur (Chhattisgarh). DEFENDANT No.2 IN CIVIL SUIT State of Chhattisgarh, through Collector, Bilaspur (Chhattisgarh) DEFENDANT No.3 IN CIVIL SUIT NOS-APPLICANT ^4 4., Tahsildar, Bilha, Tahsil office Bilha, Tahsil Bilha, District Bilaspur (Chhattisgarh) DEFENDANT No.4 IN CIVIL SUIT Being aggrieved against the order dated i.Ol.2010 passed by the.^ivil Judge Class-II, Bilha, District Bilaspur (Chhaftfsgarh) in Misc. Civil f^^ Suit No. l-A/2009 in case of ''Goverdhan Prasad HIGH COURT OF CHHATTISGARH AT BILASPUR Civil Revision No. 23 of 2010 Applicant/ Non-apDlicant No. 1 Ayodhya Prasad Dubey Goverdhan Prasad Agrawal & Others Revision under Section 115 of CPC Shri Sanja] KAgrawal, Advocate for appllcant. Shri Amit Kumar, Advocate for respondent No.1. Shri Devendra Shukla. Advocate for respondent Mo. 2. ^Sfftth 'iy" sfAprii,.2eiO) 1. Legality and Civil Judge, order dated 18.01.2010, passed by Bilha. Distt. B1!ssDur. is under sscait in ant revisi 2. The brief facts of the case as under: a. The applicant/ptaintiff instituted a suit against the non applicants c!aiming retief of deciaration, permanent injunction and in the alternative of possession ^.¥'nich was registered on 30.05.05. b. The case was transferred as per administrativs order of District Judge, Bilaspur to the court of Civi! Judge, Class i!, Bilha, Distt. Biiaspur. c. Llndisputedly, notice of such transfer has not been given to the non appiicants. It appears from the ordersheet dated 23.07.07 the case was not dlsmissed in the absence of plaintiff or his counsel on that date. d. On 28.07.07, it appears one Shri Amit Verma, Advocate, appeared on behaif of non appiicant No. 1 by Fii'ng memo of appearance and prayed time for filing Vakalatnama' in the matter. ., Civii Revision No. 23 of 2010 .1 Ayodhya Prasad Dubey Revision underSection 115 ofCPC (Sjnale Bench: Hon'bleMr. N.K. Act3n*raj, j.l : Shri Sanjaj K Agrawal,. Advocate for applicant. Shri Amit Kumar, Advocate for respondenf No. 1. Shri Devendra Shukla, Advocate for respondent Mo. 2. (Passed on 13'" day ofApri!, 2010) 1. Legallty and propriety of order dated 18.01 .2010, passed by the Civil Judge, Class II, Bilha, Distt. Bl'aspur, is under assail in ths instant revision. 2. The brief facts of the case as under: a. The aDDlicant/Dlaintiff instituted a suit aaainst the non applicants ciaiming reiief of declaration, permanent injunction and in the alternatjve of pos-session which was reaistered on 30.05.05. b. The case was transferred as oer admlnistrative ordsr of District Judge, Bilaspur to the court of Civil Judge, Class II, Bilha, Dlstt. Bilaspur. c. Undisputedly, notice of such transfer has not been given to the non applicants. It appears from the ordersheet dated 23.07.07 the case was not di-smissed in the absence of piaintiff or hi-s counsel on that date. d.0n 28.07.07, it appears one Shrl A.mit Verma, Advocate, appeared on behalf of non appiteant No. 1 by fii'ng memo of appearance and prayed time for fjling Vaka'atnama in the matter. .. f x e. Undisputedly, Vakaiatnama has not been fiied and on 03.07.2008, non applicant No. 1 was proceeded ex parte thereafter on 05.01.2009 ex parte a'ecree has been • f. On 15.06.2009, non appiicant No. 1 filed an appllcation under 9 Rule 13 of CPC alongwith gppllcatlon under Section 5 of Limitation Act for condoning de!ay. !. The case putforth by non app'lcant No. 1 for condoning delay is that no notice has been given of transfer of the case from Bilaspur to Biiha court. h. Both the parties led their evidence. i. The trial court, on appreciation of evidence led by the parties, materia! placed and submissions made, he!d non appiicant No. 1 succeeded in expialning the cause of de'ay in fiiing the application for setting aslde the ex parte decree and condoned the dels.y. 3. Shri Sanjay K Agrawal, iearned counsel appearing for the ippiicant would contend that Shri Amit Verma infact appeared on behaif of non applicant No. 1 on memo of appearance and iherefore, it cannot be said that the non appticant No. 1 was not aware about the pendencv of the case before the BHha court. He would further contend that it Is not requirement of law to give notice to the parties when the case is transferred from one court to another and the trial court ouaht to have decided both the applications together and thus the tria! court has commltted :tional error Jn condoning the de!ay and passlng the order 4. On the other hand, Shri Amit Kumar and Shri Devendra Shuka, learned counsei appearing for the respondent No. 1 8- 2 resoectivelv suoDorted the order and si.ibmitted that !n the facfs ^p^ and circumstances of the case, the trial court has rightly atlowed the application and condonedthe delay in filing application under Order 9 Rule 13of CPC and the order deserves to be upheld. I have heard the counsel appearing forthe parties, perused the order impygned and documents placed on record by the applicant. The trial court has passed the order on appreciation of msterigi placed and evidence led by the parfies. The concurrent findings recorded by both the courts below unless are based on no evidence or are perverse, the same cannot be disturbed by this court under its revisiona! jurisdiction under Section 115 of CPC. It is trite law that while condoning the de!ay, the spproach of court should iiberal. Here In the instant case, undispLrted!y, the case has been transferred from one court to another wjthout giving any intimation therefor to the non applicant No. 1. It is also not a case that the non applicant No. 1 has given power to Shri Amit Verma to appear on his behalf before the Bi'ha court. In such situation, ifthe delay application is ailowed, it icannot be said that the trial court has acted withoi.rt jurisdiction or in excess ofjurisdiction. In view of above, since no jurisdictiona.! it!ega!ity has been pointed out by the applicant, in the considered opinion of this couri:, the revision beina devoid of substance is liable to be and is herebv dismissed. No order asto costs. Sahu Sd/- N.K. Agarwa! Judge A