Cantonment Board vs Mohammad Mustaque

NEUTRAL CITATION NO. 2026:MPHC-JBP:66096
1 WP-13405-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR

BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
th
ON THE 25 OF AUGUST, 2026
WRIT PETITION No. 13405 of 2015
CANTONMENT BOARD
Versus
MOHAMMAD MUSTAQUE
Appearance:
Shri Vikram Singh - Advocate for the petitioner.
Shri Wakeel Khan - Advocate for the respondent.
ORDER
This petition has been filed by the petitioner under Article 227 of the
Constitution of India while praying for following reliefs:
"i) call for the records pertaining to present case
ii) to set aside the impugned order dt.6.8.2008 Annexure P/1
iii) grant any other relief as deemed fit and proper in the facts and
circumstances of the case and in the interest of justice."
2. It is contended by counsel for the petitioner that a suit was filed by
the present petitioner/plaintiff for restraining the respondent from raising the
unauthorised construction on the land. The suit was registered as Suit No.
195-A/1995. The said suit was dismissed for want of prosecution vide an
order dated 17.03.1998. An application under Order 9 Rule 9 read with
Section 151of C.P.C. was filed before the Trial Court. The Trial Court,
however, dismissed the said application vide an order dated 04.10.2006
contained in Annexure P/2. Thereafter, an appeal was preferred before the
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 01-09-2026
11:22:02

NEUTRAL CITATION NO. 2026:MPHC-JBP:66096
2 WP-13405-2015
Appellate Court against the said order. The Appellate Court also dismissed

the same vide an order dated 06.08.2008 contained in Annexure P/1. It is
contended by learned counsel that the respondent was occupying government
land and, therefore, the Court ought to have appreciated that the lapse on the
part of the respondent in not appearing before the Court was bona fide and
inadvertent. It is further submitted that the said lapse was sought to be
explained by way of an application filed under Order 9 Rule 9 read with
Section 151 of the C.P.C.; however, the Court dismissed the said application
in a purely mechanical manner. It is further contended by learned counsel for
the petitioner that even if, on a few occasions, the Officer-in-Charge could
not ensure his appearance, the suit ought not to have been dismissed, and a
liberal approach was required to be adopted by the Court. In support of his
contention, learned counsel has placed reliance upon the order passed by this
Court in M.A. No. 1760/2017 (Ramhit Agrawal vs. Ashok Kumar Gehani
and others) decided on 04.09.2023.
3. Learned counsel for the respondent has opposed the aforesaid prayer
and submitted that the Trial Court as well as the Appellate Court have rightly
passed the impugned orders after affording due opportunity of hearing to the
petitioner. Therefore, in view of the aforesaid, no interference is warranted in
the present petition.
4. No other point is argued or pressed by the parties.
5. Heard the rival submissions of both the parties and perused the
record.
6. A perusal of the order dated 04.10.2006 passed by the Trial Court,
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 01-09-2026
11:22:02

NEUTRAL CITATION NO. 2026:MPHC-JBP:66096
3 WP-13405-2015
contained in Annexure P/2, reflects that the case before the Trial Court

was listed on 01.05.1997, 19.09.1997 and 20.01.1998. On all three dates,
there was no appearance on behalf of the petitioner/plaintiff. Thereafter, the
case was listed on 17.03.1998; however, even on the said date, there was no
appearance on behalf of the petitioner/plaintiff. Consequently, the Trial
Court ultimately dismissed the suit for want of prosecution. It is evident from
a perusal of the record that from May 1997 till March 1998, there was no
appearance on behalf of the present petitioner. The Trial Court, after
considering the grounds taken recourse to the application for restoration of
the suit, categorically observed that on the date in question, the clerk
representing the petitioner was present in the Court in some other case,
however, he did not appear in the present case, which was listed before the
Trial Court on 17.03.1998. The Trial Court, after examining the lax handling
of the manner at the behest of the petitioner, dismissed the suit. Thereafter,
the application filed under Order 9 Rule 9 read with Section 151 of the
C.P.C. was also dismissed, after taking into consideration the entire order-
sheets and the repeated non-appearance of the present petitioner on several
occasions.
7. The appeal preferred against the order passed by the Trial Court has
also been dismissed. The Appellate Court, upon considering the matter,
observed that the reason disclosed by the present petitioner for his non-
appearance was not sufficient and, accordingly, dismissed the appeal. It is
evident that the suit was filed in the year 1995 and, by now, more than 31
years have elapsed. Therefore, restoration of the suit at this stage would
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 01-09-2026
11:22:02

NEUTRAL CITATION NO. 2026:MPHC-JBP:66096
4 WP-13405-2015
cause prejudice, loss and injury to the respondent.

8. In view of the aforesaid, this Court is of the considered view that no
interference with the impugned orders is warranted.
9. Accordingly, the present Writ Petition stands dismissed.
10. This order shall not preclude the respondent from proceeding
against the respondent if other remedies are available under the law.
(MANINDER S. BHATTI)
JUDGE
sp

Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 01-09-2026
11:22:02