HARMINDAR SINGH SAINI vs Smt. Jyoti Shah

Digitally signed by
MOHAMMED
AADIL KHAN
Date: 2026.10.28
18:18:45 +0530
1

CGHC010069962026 2026:CGHC:45389
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 239 of 2026
1 - Harmindar Singh Saini, Son of Mohan Shamsher Singh, Aged About 48 Years,
Resident of in front of Hotel Gagan Palace, Laxman Body Workshop, District -
Raipur, Chhattisgarh.
2 - Harprit Singh Sanini, Son of Mohan Shamsher Singh, Aged About 46 Years,
Resident of in front of Hotel Gagan Palace, Laxman Body Workshop, District -
Raipur, Chhattisgarh.
3 - Harbansh Kaur, Wife of Mohan Shamsher Singh, Aged About 68 Years, Resident
of in Front of Gagan Palace, Laxman Body Workshop, District - Raipur,
Chhattisgarh.
... Petitioners
versus
1 - Smt. Jyoti Shah, Wife of Munish Kumar Shah, Aged About 46 Years, Resident of
Shrinagar Road, Gudhiyari, Tahsil and District - Raipur, Chhattisgarh. (Plaintiff)
2 - Munish Kumar Shah, Son of Om Prakash Shah, Aged About 51 Years, Resident
of Shrinagar Road, Gudhiyari, Tahsil and District - Raipur, Chhattisgarh.
3 - Jaswant Singh Son of Mahendra Singh, Resident of in front of Gagan Palace,
Tatibandh, District - Raipur, Chhattisgarh.
4 - Amarjeet Singh, Son of Mahendra Singh, Resident of in front of Gagan Palace,
Tatibandh, District - Raipur, Chhattisgarh.
5 - Smt. Charan Kaur, Daughter of Mahendra Singh, Resident of in front of Gagan
Palace, Tatibandh, District - Raipur, Chhattisgarh.

2
6 - Smt. Amrjeet Kour Daughter of Mahendra Singh, Resident of in front of Gagan
Palace, Tatibandh, District - Raipur, Chhattisgarh.
7 - Smt. Kuldip Kaur, Wife of Manjeet Kaur, Aged About 66 Years, Narmada Para,
Raipur, Chhattisgarh.
8 - Smt. Raghubir Kaur, Wife Rugubakhsh Singh, Aged About 60 Years, Narmada
Para, Raipur, Chhattisgarh.
9 - Smt. Indrajeet Kaur, Wife of Gurughej Singh, Aged About 64 Years, Narmada
Para, Raipur, Chhattisgarh.
10 - State of Chhattisgarh Through Collector, Raipur Collector Premises District -
Raipur, Chhattisgarh.
... Respondents
(Cause title taken from Case Information System)
For Petitioners : Mr. Syed Afaque Hussain Rizvi, Advocate.
For Respondents No.1 and 2 : Mr. Suraj Patel, Advocate.
For State
: Mr. Ashutosh Trivedi, Panel Lawyer.
Hon'ble Shri Justice Ravindra Kumar Agrawal, J.
Order on Board
27-10-2026
1. Heard.
2. The present is writ petition filed by the petitioners under Article 227 of the
Constitution of India challenging the order dated 14-01-2026 passed by the
th
learned 4 Additional Jude to the Court of learned First Civil Jude Senior
Division, Raipur in Civil Suit No.349-A/2021 whereby the application filed by
the petitioners under Order 9 Rule 7 of the CPC has been rejected.
3. Learned counsel appearing for the petitioners would submit that the
petitioners are defendants No.1A, 1B and 3 before the learned trial Court
where respondents No.1 and 2 are plaintiffs who are prosecuting a suit for
declaration of title, permanent and mandatory injunction with respect to the
suit property bearing Khasra No. 363/43 area 0.105 hectare situated at
Village Tatibandh, Tahsil and District Raipur. During proceeding of the civil

3
suit the defendants No.1A, 1B and 3 made their appearance and the case
was fixed for filing of their written statement. However, on 28-07-2025 they
could not make their appearance and they have been proceed ex-parte by
the learned trial Court on 28-07-2025. The case was fixed for recording of
plaintiffs’ evidence on 20-08-2025. On the very next date the defendants
have filed an application under Order 9 Rule 7 of the CPC along with another
application under Order 6 Rule 17 of the CPC for setting aside the ex-parte
order. The said application under Order 9 Rule 7 of the CPC was withdrawn
on 18-09-2025 and another duly constituted application under Order 9 Rule 7
of the CPC was filed on the same day, which was decided on 14-01-2026 on
the ground that it was filed after about 48 days of the ex-parte order and the
defendants have failed to explain plausible reason for their non-appearance
on the date when the ex-parte order was passed. He would further submit
that on the very next date of the order by which the petitioners were
proceeded ex-parte they have filed their application under Order 9 Rule 7 of
the CPC, however, due to some technical defect the same was withdrawn
and a fresh application was filed on the same day, therefore, it cannot be said
that the application was filed after about 48 days, even there is no limitation
prescribed under Order 9 Rule 7 of the CPC and it is only when the next date
of hearing the party against whom the ex-parte order passed appears and
shows their plausible reason, they may be permitted to participate in
proceeding. The learned trial Court has not exercised their jurisdiction in a
proper manner. He would further submit that the defendants are representing
by their counsel and it is only due to miscommunication between their junior
and senior counsel, they could not appear in the proceeding and then the
defendants have been proceeded ex-parte. There is no any delay in making
the application for setting aside the ex-parte order, yet their application has
been rejected. Therefore, the impugned order may be set aside and the
petitioners may be permitted to participate in the proceeding of the civil suit

4
before the learned trial Court.
4. On the other hand, learned counsel for the respondents No.1 and 2 opposes
the submissions made by learned counsel for the petitioners and has
submitted that the learned trial Court has rightly rejected the application
holding that it has been filed after about 48 days. He would further submit
that though there is no limitation prescribed for filing the application for
setting aside the ex-parte order, yet it has to be filed within a reasonable time
supported a plausible reason for their non-appearance. In the present case
they shifted their burden upon their counsel which is not bonafide, therefore,
there is no merit in the present writ petition and the same is liable to be
dismissed.
5. I have heard learned counsel for the parties and perused the documents
annexed with the present petition.
6. From order sheets annexed with the petition Annexure P/1, it transpires that
the petitioners were proceeded ex-parte vide order dated 28-07-2025 and the
case was next fixed on 20-08-2025. On 20-08-2025 the order sheet reflects
that an application under Order 9 Rule 7 of the CPC has been filed by the
defendants, however, the same was withdrawn on 18-09-2025 and on the
same day another application was filed for the same, which was decided by
the impugned order dated 14-01-2026. The learned trial Court has observed
in its order dated 14-01-2026 that the application under Order 9 Rule 7 of the
CPC has been filed after about 48 days that too without any plausible reason
for their non-appearance.
7. The Order 9 Rule 7 of the CPC prescribes the procedure where defendant
appears on day of adjournment hearing and assigns good cause for previous
non-appearance, which reads as under:-
“ 7. Procedure where defendant appears on day of adjourned
hearing and assigns good cause for previous non-appearance.—
Where the Court has adjourned the hearing of the suit ex parte , and

5
the defendant, at or before such hearing, appears and assigns good
cause for his previous non-appearance, he may, upon such terms as
the Court directs as to costs or otherwise, be heard in answer to the
suit as if he had appeared on the day fixed for his appearance.”
8. In the present case the petitioners have been proceeded ex-parte on 28-07-
2025 and the next date fixed on 20-08-2025. On 20-08-2025 they have
appeared along with an application under order 9 Rule 7 of the CPC which is
the mandate of Order 9 Rule 7 of the CPC that very next date the defendants
had appeared in the proceeding and prayed for setting aside the ex-parte
order.
9. The another limb of their submission is that the petitioners have duly
explained their reason for non-appearance which is reflected from the
application Annexure-P/3. It is necessary to note relevant part of their
explanation offered in the application Annexure- P/3, which reads as under:-
“
¼2½ ;g fd] mDr izdj.k dh iwoZ fu;r is’kh fnukad 28-07-2025 dks fu;r Fkh]
mDr izdj.k esa pk;dky ds iwoZ dfu"B vf/koDrk Jhefr [kq’kcw czEgk
mifLFkr gqbZ Fkh rFkk pk;dky ds i'pkr~ Hkh mDr dfu"B vf/koDrk
ekuuh; U;k;ky; ds le{k mifLFkfr ntZ djk;h] fdarq mifLFkfr ntZ djkrs
oDr vius i{kdkj ds ckjs esa lgh tkudkjh ekuuh; U;k;ky; dks ugha ns
ik;h] ftlds pyrs i{kdkjksa ds vleatL; gksus ls ekuuh; U;k;ky; ds }kjk
izfroknhx.k ds fo#) ,di{kh; dk;Zokgh dh xbZ gSA
¼3½ ;g fd] dfu"B vf/koDrk dh mDr Hkwy ln~Hkkfod Fkh] tks fd {kek fd;s
”
tkus ;ksX; gSA
10. When the defendants appeared in the proceeding on the very next day after
ex-parte proceeding and shown their reason that due to miscommunication
between junior and senior counsel, they could not make their appearance
before the trial Court in the proceeding, it cannot be said that the defendants
have failed to explain any plausible reason for their non-appearance on the
date when the ex-parte proceeding was drawn against them.

6
11. It is settled law that a litigant cannot be suffered due to fault of their counsel
as has been held by the Hon’ble Supreme Court in the case of Rafiq and
another v. Munshilal and another , (1981) 2 SCC 788, that:-
"2. We have heard Mr. O. P. Rana, learned counsel for the appellant,
and Mr. A.K. Sanghi, learned counsel for the respondent. The High
Court disposed of the appeal preferred by the present appellant in the
absence of the learned counsel for the appellant. When the appellant
became aware of the fact that his appeal had been disposed of in the
absence of his advocate, he moved an application in the High Court
to recall the order dismissing his appeal and permit him to participate
in the hearing of the appeal. This application was rejected by the High
Court on the ground that though the application was prepared and
drafted and an affidavit was sworn on 29th October, 1980, the same
was not presented to the court till November 12, 1980 and that there
is no satisfactory explanation for this slackness on the part of the
learned advocate who was requested to file the application.
3. The disturbing feature of the case is that under our present
adversary legal system where the parties generally appear through
their advocates, the obligation of the parties is to select his advocate,
brief him, pay the fees demanded by him and then trust the learned
advocate to do the rest of the things. The party may be a villager or
may belong to a rural area and may have no knowledge of the court's
procedure. After engaging a lawyer, the party may remain supremely
confident that the lawyer will look after his interest. At the time of the
hearing of the appeal, the personal appearance of the party is not
only not required but hardly useful. Therefore, the party having done
everything in his power to effectively participate in the proceedings
can rest assured that he has neither to go to the High Court to inquire
as to what is happening in the High Court with regard to his appeal

7
nor is he to act as a watchdog of the advocate that the latter appears
in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi
stated that a practice has grown up in the High Court of Allahabad
amongst the lawyers that they remain absent when they do not like a
particular Bench. May be, we do not know, he is better informed in
this matter. Ignorance in this behalf is our bliss. Even if we do not put
our seal of imprimatur on the alleged practice by dismissing this
matter which may discourage such a tendency, would it not bring
justice delivery system into disrepute. What is the fault of the party
who having done everything in his power and expected of him would
suffer because of the default of his advocate. If we reject this appeal,
as Mr. A.K. Sanghi invited us to do, the only one who would suffer
would not be the lawyer who did not appear but the party whose
interest he represented. The problem that agitates us is whether it is
proper that the party should suffer for the inaction, deliberate
omission, or misdemeanour of his agent. The answer obviously is in
the negative. Maybe that the learned Advocate absented himself
deliberately or intentionally. We have no material for ascertaining that
aspect of the matter. We say nothing more on that aspect of the
matter. However, we cannot be a party to an innocent party suffering
injustice merely because his chosen advocate defaulted. Therefore,
we allow this appeal, set aside the order of the High Court both
dismissing the appeal and refusing to recall that order. We direct that
the appeal be restored to its original number in the High Court and be
disposed of according to law. If there is a stay of dispossession it will
continue till the disposal of the matter by the High Court. There
remains the question as to who shall pay the costs of the respondent
here. As we feel that the party is not responsible because he has
done whatever was possible and was in his power to do, the costs

8
amounting to Rs.200/- should be recovered from the advocate who
absented himself. The right to execute that order is reserved with the
party represented by Mr. A.K.Sanghi.
4. Appeal allowed to the extent indicated with costs in the manner
indicated."
12. Considering the material available in the present writ petition and after
perusal of the order sheets as also the application filed by the petitioners
before the learned trial Court, this Court is of the considered opinion that the
learned trial Court has committed an error in rejecting the application filed by
the petitioners.
13. Accordingly, the impugned order dated 14-01-2026 is set aside. The
application filed by the petitioners under Order 9 Rule 7 of the CPC is
allowed and the ex-parte order dated 28-07-2025 is set aside. The petitioners
shall be permitted to participate in the proceeding in accordance with law.
14. With the aforesaid observation the present writ petition is allowed . However,
it is expected that the parties shall cooperate in expeditious disposal of the
suit and shall not take unnecessary adjournment in the proceeding.
Sd/-
(Ravindra Kumar Agrawal)

Judge
Aadil