Rajkumar Agrawal vs Smt. Indrani Bai on 6 August, 2025

Chattisgarh High Court

Rajkumar Agrawal vs Smt. Indrani Bai on 6 August, 2025

                                        1




                                                                   AFR

             HIGH COURT OF CHHATTISGARH AT BILASPUR

                              WP227 No. 251 of 2024
1 - Rajkumar Agrawal S/o Late Babulal Agrawal Aged About 55 Years R/o
Ramsagarpara, Raipur, Tahsil And District Raipur (C.G.) (Plaintiff)
                                                            ... Petitioner(s)
                                  versus
1 - Smt. Indrani Bai Wd/o Itwari Ram Balmiki R/o Kodpar, Tahsil Kurud,
District Dhamtari (C.G.) (Defendant)
                                                       ---- Respondent(s)

For Petitioner : Mr. A.D. Kuldeep, Advocate
For Respondent : None appears though served.

Hon’ble Shri Justice Rakesh Mohan Pandey
Order on Board
06.08.2025

1. The petitioner has filed this petition seeking the following relief(s):-

“10.1 That this Hon’ble Court may kindly be pleased to
set-aside/quash the impugned order dated 12.01.2024
and further be pleased to restore the civil suit no. 146-
B/2018 to the file of the trial Court for further hearing,
in accordance with law
10.2 That, any other relief/order which may deem fit
and just in the facts and circumstances of the case
including award of the costs of the petition may be
given.”

2. Mr. Kuldeep, the learned counsel appearing for the petitioner, would

submit that Civil Suit No.27/2019, the parties being Rajkumar

Agrawal Vs. Smt. Indrani Bai was decided by the learned Trial Court
-2-

vide order dated 25.06.2022 whereby the civil suit filed by the

petitioner was dismissed for want of prosecution. The petitioner

moved an application under Order 9 Rule 9 read with Section 151 of

the CPC assigning reasons, and the said application was rejected by

the learned Civil Judge, Class-II, Raipur, in Miscellaneous Civil Suit

No.27/2019 vide order dated 25.06.2022. He would contend that

against the said order, the petitioner preferred an appeal under Order

41 Rule 1 of the CPC instead of Order 43 Rule 1 of the CPC before

the learned Appellate Court. He would further contend that an

application under Order 41 Rule 27 of CPC was also moved. Mr.

Kuldeep would also submit that the appeal preferred by the petitioner

was dismissed on the ground that, against the rejection of an

application under Order 9 Rule 9 of CPC, an appeal under Order 41

Rule 1 of CPC is not competent, though it was registered as

Miscellaneous Appeal No.30 of 2022. He would pray to set aside the

order passed by the Appellate Court dated 12.01.2024.

3. Despite the service of notice, there is no representation for the

respondent.

4. I have heard the learned counsel appearing for the petitioner and

perused the documents placed on the record.

5. It is a well settled principle of law that mentioning an incorrect

provision of law in an application would generally not render the

application invalid or subject to automatic dismissal.

6. The petitioner committed a mistake by mentioning Order 41 Rule 1 of
3

CPC while filing the appeal against the rejection of an application

under Order 9 Rule 9 of CPC; rather, he should have mentioned

Order 43 Rule 1 of CPC, but the learned Appellate Court should have

considered the essence and intent of the appeal preferred by the

petitioner. The appeal preferred by the petitioner was registered as a

Miscellaneous Appeal, and thus, the Court below was aware of the

fact that the appeal was preferred according to provisions of Order 43

Rule 1 of CPC, but by adopting a rigid and technical approach, the

appeal was dismissed.

7. The Hon’ble Supreme Court in the matter of Pruthvirajsinh

Shah & others reported in 2019 (9) SCC 533 in para 8 held as

under:-

“8.It is well-settled law that mere non-mentioning of an incorrect
provision is not fatal to the application if the power to pass such
an order is available with the court.”

8. Taking into consideration the facts discussed-above and the law laid

down by the Hon’ble Supreme Court, the order dated 12.01.2024 is

hereby set aside. Learned Appellate Court is directed to treat the

appeal preferred by the petitioner under Order 43 Rule 1 of CPC and

decide it fresh on its own merits after affording the opportunity of

hearing to the parties.

9. The record of the Court below be returned forthwith.

Sd/-

(Rakesh Mohan Pandey)
Judge
Rekha
-4-

WP227 No. 251 of 2024

Head Note

Mentioning of incorrect provision is not fatal to the application if

the power to pass the order is available with the Court.