SHYAM SINGH TOMAR Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India has been preferred against the order dtd. 4/4/2019, passed by the Court of 3rd Additional District Judge, Gwalior in MJC No.46-A/2015, whereby the application filed by the respondent/State Bank of India under Sec. 151 of Civil Procedure Code (for brevity "CPC") was allowed and his application filed under Order IX Rule 13 of CPC bearing MJC No.26-A/2014 was restored.

(2.) Brief facts giving rise to this petition are that the petitioner/plaintiff has filed a civil suit bearing No.16-A/2007 before the Court of 14th Additional District Judge, Gwalior, wherein the respondent/State Bank of India was one of the party as defendant no.5. The aforesaid civil suit was transferred to the Court of 3rd Additional District Judge, Gwalior and registered as Civil Suit No.56-A/2009. During the trial of above civil suit, at the stage of defence evidence, respondent did not produce his witness for cross-examination and remained absent, therefore, ex parte judgment dtd. 15/9/2010 was passed against him. The respondent filed First Appeal before this Court as well as an application under Order IX Rule 13 of CPC before the Court of 3rd Additional District Judge, Gwalior for setting aside the alleged ex parte judgment and decree passed against him. His application filed under Order IX Rule 13 of CPC was registered as MJC bearing No.26-A/2014, which was dismissed on 29/7/2015 for want of prosecution as well as for non-compliance of the orders of the learned Trial Court. The respondent/State Bank of India filed an application under Sec. 151 of CPC bearing MJC No.46-A/2015 for setting aside the aforesaid order dtd. 29/7/2015 and restoration of MJC No.26- A/2014. By the impugned order, learned Trial Court allowed respondent's application and restored the application filed under Order IX Rule 13 of CPC bearing MJC No.26-A/2014, which is pending before the Court of 3rd Additional District Judge, Gwalior.

(3.) Learned counsel for the petitioner submits that in view of the specific provisions of appeal available under Order XLIII Rule 1 (c) of CPC, the order of dismissal of the application filed under Order IX Rule 13 of CPC cannot be assailed under Sec. 151 of CPC before the same Court, as held by Hon'ble the Full Bench of this Court in the case of Nathu Prasad Vs. Singhai Kapurchand, 1976 AIR (MP) 136, hence, the application filed by the respondent under Sec. 151 of CPC was not maintainable. Learned Trial Court has committed error of jurisdiction in entertaining and allowing the respondent's application filed under Sec. 151 of CPC. He has also relied upon the judgment passed by Hon'ble the Apex Court in the case of Neerja Realtors Private Limited Vs. Janglu (Dead) Through Legal Representative, (2018) 2 SCC 649. He further submits that the application filed by the respondent under Sec. 151 of CPC was without sign and seal of the authorised person of the respondent/State Bank of India. The counsel for the respondent himself filed the said application without any authority. Learned Trial Court illegally held that the Vakalatnama filed in MJC No.26-A/2014 will be treated as a valid Vakalatnama in the aforesaid case bearing MJC No.46-A/2015. Thus, the impugned order dtd. 4/4/2019 is liable to be set aside, hence, be set aside.