Full Judgment Text
REPORTABLE
2025 INSC 542
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5319 OF 2025
[arising out of SLP(C) 20978 OF 2024]
KANCHHU … APPELLANT
VS.
PRAKASH CHAND & ORS. … RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
T HE A PPEAL
st
1. This civil appeal is directed against a judgment and order dated 1 May,
1
2024 of a learned Judge of the High Court of Judicature at Allahabad
2
allowing a writ petition under Article 227 of the Constitution of India filed
by the respondents. The impugned order also allowed multiple interlocutory
applications, viz. application for condonation of delay in filing a recall
application; application for recall/restoration, an application for amendment
Signature Not Verified
prior to the writ petition being allowed.
Digitally signed by
JATINDER KAUR
Date: 2025.04.22
18:18:12 IST
Reason:
1
impugned order
2
Writ C No.378 of 2003
T HE F ACTS
2. Facts giving rise to this appeal, in a nutshell, are:
3 nd
I. Appellant, as plaintiff, instituted a civil suit on 22 May, 1987 for
cancellation of a sale deed in the court of the Munsif, Khurja, District
4
Bulandshahr, Uttar Pradesh . The prayer in the plaint was for
5
cancellation of a registered sale deed , whereby the appellant
purportedly transferred a land, measuring a little in excess of 6 bigha
5 biswa, in favour of the defendants. The appellant set up a case of
fraud in support of his claim for relief.
II. Respondents, being the defendants, filed their written statement on
th
18 September, 1987. They claimed that the appellant was their
brother. After relations between the brothers soured, the appellant
th
instituted the suit with ill-motive. Issues were framed on 18
January, 1988. While issue No.4 was a preliminary issue, as to
jurisdiction of the court to decide the claim of the appellant, issue
no.3 was whether the suit was barred by Section 34 of the Specific
Relief Act, 1963. Both these issues along with other issues were
decided against the respondents.
III. After filing the written statement, the respondents went on taking
adjournment one after the other. On 10 (ten) occasions, the trial
court adjourned proceedings. Having abstained from participating in
3
Suit No.105/1987
4
trial court
5 th
deed was registered in the Office of Sub-Registrar, Khurja, bearing No. 5179 dated 05
September, 1984
2
th
the proceedings, an order dated 24 April, 1991 was passed setting
the respondents ex-parte. Evidence of the appellant was recorded on
nd
2 July, 1991. Since the respondents did not appear, the appellant
faced no cross-examination. The suit was posted for arguments and
th
arguments were heard on 6 August, 1991. Finally, the suit was
th
decreed ex parte by the trial court on 17 August 1991.
IV. An application under Order IX Rule 13 of the Code of Civil Procedure,
6
1908 together with an application under Section 5 of the Limitation
7 8
Act, 1963 was filed by the respondents .
rd
V. By an order dated 3 November, 1997, the application for
condonation of delay was rejected, thereby resulting in dismissal of
9
the Misc. Case. The order of dismissal was carried in revision
whereupon such revision was allowed. The prayer for condonation of
delay was granted and the trial court was directed, by an order dated
th
19 April, 1999, to dispose of the application under Order IX Rule 13,
CPC on its own merits.
VI. The trial court thereafter proceeded to hear the Order IX Rule 13
rd
application and dismissed it by an order dated 23 July, 2002.
VII. The order dated 23rd July, 2002 was then carried in a miscellaneous
10
appeal , which was dismissed by the District Judge, Gautam Budh
th
Nagar on 8 October, 2002. It was held by the appellate court that
6
CPC
7
1963 Act
8
giving rise to Misc. Case No. 74 of 1991
9
Civil Revision No. 174 of 1997
10
M.C.A. No.52/2002
3
th
although the respondent no.1 claimed to have taken ill on 15
th
August, 1991 and such illness continued till 30 November, 1991,
th
during this period only the judgment and decree dated 17 August,
1991 were delivered and passed, respectively. Therefore, on its very
face, sufficient cause for non-appearance not having been shown by
the respondents in the application under Order IX Rule 13, CPC, they
did not deserve any order in their favour.
th
VIII. The appellate order dated 8 October, 2002 was challenged in the
writ petition by the respondents, out of which this appeal has arisen.
st
IX. By an order dated 1 December, 2011, the writ petition was
dismissed as infructuous. However, the learned Judge granted two
months’ time to seek recall of such order in case any question
survived for decision.
st
X. The order dated 1 December, 2011 was passed in the absence of
the respondents, who were the petitioners in the writ petition.
XI. More than six and a half years later, the respondents sought recall of
st
the order dated 1 February, 2011 together with an application for
condonation of delay. The explanation proffered for the delay was
that the respondents had not been informed by their counsel that the
st
writ petition stood dismissed as infructuous vide order dated 1
December, 2011.
XII. By the impugned order, the High Court allowed the prayer for
st
condonation of delay, recalled the order dated 1 December, 2011,
allowed the prayer for amendment and then proceeded to allow the
4
writ petition. The appellate order confirming dismissal of the
application under Order IX Rule 13, CPC was set aside as well as the
th
ex-parte decree dated 17 August 1991.
C ONTENTIONS O N B EHALF O F T HE P ARTIES
3. Mr. Partha Sakha Datta, learned senior counsel for the appellants was
overly critical of the impugned judgment and order. According to him,
absolutely incorrect tests were applied by the learned Judge while allowing
the writ petition and the impugned order is, thus, indefensible.
4. Mr. Sukumar Pattjoshi, learned senior counsel for the respondents, on the
other hand appealed to the conscience of the Court not to interfere with the
discretion exercised by the learned Judge in favour of the respondents. He
contended that the ultimate effect of the impugned order is to ensure a fair
trial which the respondents missed on the earlier occasion due to reasons
absolutely beyond their control. Accordingly, he prayed that the appeal be
dismissed.
I SSUE
5. The solitary issue emerging for adjudication by us is whether the High Court
was justified on facts and in law to allow the writ petition of the respondents
in the manner it did?
A NALYSIS AND R EASONS
6. We have heard Mr. Datta and Mr. Pattjoshi and perused the materials on
record.
st
7. The writ petition of the respondents stood dismissed as infructuous on 1
December, 2011 along with multiple other writ petitions in the process of
5
weeding out matters, which the High Court felt had become infructuous by
efflux of time. The learned Judge of the High Court, however, was conscious
that there could be writ petitions which involved question(s) surviving for a
decision but the petitioner(s) in such petitions had not been represented on
that day. Accordingly, the learned Judge observed that recall could be
sought within a period of two months, meaning thereby that if an
application for recall were filed, recall of the order of dismissal and
restoration of the writ petition would be a mere formality.
th
8. The respondents applied for recall as late as on 5 June, 2018. By then 7
(seven) years had passed. We have gathered from the papers forming part
of the paper book that the respondent no.1 is a lawyer. Even if he were not
a lawyer, nothing much would turn on it. The period of 7 (seven) years is
sufficiently long and considered in the light of the fact that the decree of
the trial court had been executed and the impugned sale deed cancelled,
the respondents should have woken up from their slumber earlier. This
delay itself would constitute sufficient reason for not condoning the delay
in filing the application for recall of the order dismissing the writ petition as
infructuous. However, we propose to take a lenient view having regard to
the explanation proffered by the respondents that their lawyer did not
inform them that the writ petition had been dismissed. For the moment, we
shall assume that there was sufficient ground for the respondents not to
apply for recall earlier and that the learned Judge was justified to (i)
condone the delay in presentation of the recall application; (ii) recall the
st
order dated 1 December, 2011 and (iii) restore the writ petition to file.
6
However, by no means should we be understood to lay down any law that
whenever a litigant places the blame on the lawyer by pleading that it was
the lawyer’s fault or mistake that resulted in his (litigant’s) misfortune, the
same has invariably to be accepted.
9. Moving forward, we have found the grounds assigned by the learned Judge
for allowing the writ petition to be quite strange. The learned Judge did not
at all discuss what was the case set up by the respondents while seeking
recall of the ex parte decree and what the defence of the appellant was in
his written objection. The reasons given in the appellate order upholding
dismissal of the application under Order IX Rule 13, CPC seem to have gone
th
unnoticed. Despite issues having been framed as late as on 18 January,
1988, the ignorance of the learned Judge becomes apparent when in the
operative part of the impugned order directions are given for framing of
issues. Over and above all these, the learned Judge appears to have set
aside the ex parte decree passed by the trial judge as if he were sitting in
appeal and exercising appellate jurisdiction over such decree. This is
evident from a bare reading of the impugned order. Relevant observations
therefrom read as follows:
… I have gone through the ex parte judgment and decree passed by the
th
trial court on 17 August, 1991 and find that the trial court has simply
proceeded to record statement of plaintiff and had decreed the suit. He
has referred to the written statement filed by the defendant but has not
considered it only on the ground that court had proceeded ex parte in
the matter.
In my considered view, while the court was proceeding ex parte , the
court ought to have considered the written statement and defence taken
therein.
It is well settled law that whenever the suit filed and finally judgment is
passed, it is an adjudication of lis between the parties. There has to be
7
independent application of mind as to the issues emerging out from the
plaint allegations and written statement if filed. There has to be a proper
adjudication and only then it can be said that to be formal declaration
of judgment to fall within the meaning of Section 2(2) of C.P.C.
In view of the above, this petition holds merit and is accordingly allowed.
…
Consequent upon the aforesaid observations, the learned Judge did what
we have recorded above together with directions to expedite a decision on
the suit.
10. We are not so much dismayed by the outcome of the writ petition but rather
the manner in which the learned Judge proceeded and also by the reasons
assigned for granting the prayers of the respondents.
11. In exercise of jurisdiction under Article 227 of the Constitution, the learned
Judge was required to examine whether the respondents had shown
sufficient cause for staying away from the proceedings of the suit after filing
their written statement; in other words, whether despite showing sufficient
cause, not only the trial court but also the appellate court fell in error in not
accepting the explanation proffered and in setting aside the ex parte
decree.
12. As referred to above, the learned Judge barely considered the application
under Order IX Rule 13, CPC filed by the respondents and, thus, without
even looking into the cause shown allowed the prayer for setting aside of
the ex parte decree perceiving the judgment preceding it to be flawed on
merits.
13. We have perused the affidavit accompanying the applications under Order
IX Rule 13, CPC and Section 5 of the 1963 Act in the Misc. Case. It was
8
averred therein that the respondent no. 1 was looking after the case on his
th
own behalf and on behalf of the other respondents; that, he fell sick on 15
August, 1991; and that, he was so sick that he was unable to walk. A
th
medical certificate dated 30 November, 1991 issued by a local doctor was
sought to be relied on certifying that the respondent no. 1 was under his
th th
treatment from 15 August 1991 to 30 November, 1991. A written
objection to the application was filed by the appellants wherein it was
averred that the respondent no.1 was a resident of the same village where
the appellant no.1 resided and that he has seen the respondent no. 1
moving around in a healthy state and that the medical certificate was
bogus. It was further pleaded that the respondents were deliberately not
participating in the proceedings and filing repeated applications for
th nd
adjournment for which they were set ex parte on 24 April, 1991. On 2
th
July, 1991, evidence was recorded and 6 August, 1991 was fixed for
th nd th
arguments. On 24 April, 2 July, 1991 and 6 August, 1991, the
respondent no.1 was not ill as per his own case. Why did the respondents
stay away from the proceedings had not been explained. Ultimately, the
th
suit was decided ex parte on 17 August, 1991.
14. Significantly, even if the plea of the respondent no. 1 that he fell sick from
th
15 August, 1991 is accepted, we find that the respondents went on
th
seeking adjournments. The appellate court in its order dated 8 October,
2002 noted that on 10 (ten) previous occasions, prayers for adjournment
made by the respondents were allowed. It is also found that the
respondents stayed away from the trial court months before the claimed
9
illness of the respondent no.1. No wonder, due to their absence, the
th
respondents were set ex parte by the trial court on 24 April, 1991. The
respondents never explained what was the real cause for the suit to proceed
ex parte . The cause shown falls much short of an explanation and we are
inclined to view it as nothing but a lame excuse. In view of the specific
objection taken by the appellants, one would have thought that the
respondents would step on to the witness box and prove the case set up in
the applications. Neither did the respondent no.1 and the co-respondents
nor the so-called attending doctor of the respondent no.1 stepped into the
witness box to prove that the respondent no.1 was ill; the appellant no.1
was not, therefore, proved wrong. Assuming that the respondent no. 1 was
so sick which prevented him from attending the court, there is no
explanation either as to why the other respondents after filing of the written
statement had not shown any interest to contest the suit.
15. While hearing the application under Order IX Rule 13, CPC as well as the
miscellaneous appeal, the trial court and the appellate court, respectively
assigned cogent reasons for not accepting the cause shown by the
rd
respondents. Since the learned Judge did not refer to the orders dated 23
th
July, 2002 and 8 October, 2002 passed by the said courts at all, we do not
have the benefit of ascertaining how the trial court and the appellate court
went wrong in not allowing the application for setting aside the ex parte
decree.
16. It is truism that vigilance and diligence go hand-in-hand, making them two
sides of the same coin, when it comes to pursuing/defending a legal action.
10
In this case, not only vigilance and diligence on the part of the respondents
are woefully lacking but such lack is glaringly apparent.
th
17. The respondents faltered to defend the suit even prior to 24 April 1991
when the order setting them ex parte was passed and we find it
incomprehensible as to how the learned Judge of the High Court could be
convinced, so much so that without any reference to the case and counter-
case set up by the parties and the orders passed by the trial court and the
appellate court, the application under Order IX Rule 13, CPC could succeed.
It is only on this short ground (that the respondents did not make out
th
sufficient cause for their absence on continuous dates from 24 April 1991
th
till the suit was decreed on 17 August 1991) that the impugned order
cannot be sustained in law.
18. Although we have expressed our mind about the inevitable outcome of this
appeal, we have observed with a great sense of disappointment the
observations made by the learned Judge extracted (supra) demonstrating
a clear misconception of the legal position as to the rights of a defendant in
a civil suit where such defendant has been set ex parte. Before parting,
therefore, there is a need to say a few words for the guidance of the courts.
19. Pleadings, either in a plaint or a written statement, constitute the plinth on
which the respective claims and defence of the parties to a civil suit rest.
What a pleading ought to contain is provided in Order VI Rule 2, CPC. Only
material facts, on which the party pleading relies for his claim or defence to
succeed, have to be stated without the evidence by which the pleading is
to be proved. Once the pleadings are complete but the defendant is set ex
11
parte , and such order has attained finality, the defendant’s rights suffer a
curtailment. He cannot produce evidence in defence and hence statements,
which are in the nature of factual assertions, cannot be proved by leading
evidence. Generally speaking, the limited right that the defendant, set ex
parte , would have is confined to cross-examining the plaintiff’s witnesses.
The effort has to be directed towards demonstrating that they are not
speaking the truth and, thereby, demolish the case of the plaintiff.
Essentially, therefore, in such a case the defendant has to convince the
court that the case put up by the plaintiff is so false that the court ought
not to accept it. However, if the defendant raises an issue on law which is
traceable in the written statement, for instance, the suit is barred by
limitation or Section 9, CPC is attracted, or if the relief claimed in the suit
cannot be granted for reasons disclosed, the requirement of the defendant
proving such defence as raised in the written statement by leading evidence
may not arise and the court may frame an issue of law and decide the same.
20. We have noticed that the preliminary issue of jurisdiction of the trial court
to receive, entertain and try the suit was decided against the respondents
th
vide an order dated 18 January, 1988. The little detail that is decipherable
from the written statement of the respondents is that in view of a local
enactment with regard to the Zamindari system, the respondents claimed
that the trial court did not have jurisdiction. Nevertheless, it does appear
that other issues were framed and since the respondents did not cross-
examine the appellant, whatever he deposed was believed and accepted.
We are left to wonder how the judgment of the trial court could have been
12
faulted and the decree set aside on the ground that the defence raised in
the written statement was not considered while granting relief. The
observations of the learned Judge cannot be countenanced with reference
to any provision of law or binding precedent.
21. We have no doubt that it is the flawed approach of the learned Judge which
has resurrected the dispute between the brothers, which was finally decided
over 3 (three) decades back. As has rightly been contended by Mr. Datta,
the impugned order of the High Court being based on irrelevant, illogical
and immaterial observations is clearly indefensible.
C ONCLUSION
st
22. The impugned order dated 1 May, 2024 of the High Court is set aside and
th
the order of the appellate court dated 8 October, 2002, impugned in the
writ petition, is upheld with the result that the writ petition of the
respondents filed in the High Court shall stand dismissed.
23. The civil appeal, accordingly, stands allowed.
24. The pending application(s), if any, stands closed.
…………………………J.
(DIPANKAR DATTA)
…………………………J.
(MANMOHAN)
NEW DELHI;
APRIL 22, 2025.
13
2025 INSC 542
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5319 OF 2025
[arising out of SLP(C) 20978 OF 2024]
KANCHHU … APPELLANT
VS.
PRAKASH CHAND & ORS. … RESPONDENTS
J U D G M E N T
DIPANKAR DATTA, J.
T HE A PPEAL
st
1. This civil appeal is directed against a judgment and order dated 1 May,
1
2024 of a learned Judge of the High Court of Judicature at Allahabad
2
allowing a writ petition under Article 227 of the Constitution of India filed
by the respondents. The impugned order also allowed multiple interlocutory
applications, viz. application for condonation of delay in filing a recall
application; application for recall/restoration, an application for amendment
Signature Not Verified
prior to the writ petition being allowed.
Digitally signed by
JATINDER KAUR
Date: 2025.04.22
18:18:12 IST
Reason:
1
impugned order
2
Writ C No.378 of 2003
T HE F ACTS
2. Facts giving rise to this appeal, in a nutshell, are:
3 nd
I. Appellant, as plaintiff, instituted a civil suit on 22 May, 1987 for
cancellation of a sale deed in the court of the Munsif, Khurja, District
4
Bulandshahr, Uttar Pradesh . The prayer in the plaint was for
5
cancellation of a registered sale deed , whereby the appellant
purportedly transferred a land, measuring a little in excess of 6 bigha
5 biswa, in favour of the defendants. The appellant set up a case of
fraud in support of his claim for relief.
II. Respondents, being the defendants, filed their written statement on
th
18 September, 1987. They claimed that the appellant was their
brother. After relations between the brothers soured, the appellant
th
instituted the suit with ill-motive. Issues were framed on 18
January, 1988. While issue No.4 was a preliminary issue, as to
jurisdiction of the court to decide the claim of the appellant, issue
no.3 was whether the suit was barred by Section 34 of the Specific
Relief Act, 1963. Both these issues along with other issues were
decided against the respondents.
III. After filing the written statement, the respondents went on taking
adjournment one after the other. On 10 (ten) occasions, the trial
court adjourned proceedings. Having abstained from participating in
3
Suit No.105/1987
4
trial court
5 th
deed was registered in the Office of Sub-Registrar, Khurja, bearing No. 5179 dated 05
September, 1984
2
th
the proceedings, an order dated 24 April, 1991 was passed setting
the respondents ex-parte. Evidence of the appellant was recorded on
nd
2 July, 1991. Since the respondents did not appear, the appellant
faced no cross-examination. The suit was posted for arguments and
th
arguments were heard on 6 August, 1991. Finally, the suit was
th
decreed ex parte by the trial court on 17 August 1991.
IV. An application under Order IX Rule 13 of the Code of Civil Procedure,
6
1908 together with an application under Section 5 of the Limitation
7 8
Act, 1963 was filed by the respondents .
rd
V. By an order dated 3 November, 1997, the application for
condonation of delay was rejected, thereby resulting in dismissal of
9
the Misc. Case. The order of dismissal was carried in revision
whereupon such revision was allowed. The prayer for condonation of
delay was granted and the trial court was directed, by an order dated
th
19 April, 1999, to dispose of the application under Order IX Rule 13,
CPC on its own merits.
VI. The trial court thereafter proceeded to hear the Order IX Rule 13
rd
application and dismissed it by an order dated 23 July, 2002.
VII. The order dated 23rd July, 2002 was then carried in a miscellaneous
10
appeal , which was dismissed by the District Judge, Gautam Budh
th
Nagar on 8 October, 2002. It was held by the appellate court that
6
CPC
7
1963 Act
8
giving rise to Misc. Case No. 74 of 1991
9
Civil Revision No. 174 of 1997
10
M.C.A. No.52/2002
3
th
although the respondent no.1 claimed to have taken ill on 15
th
August, 1991 and such illness continued till 30 November, 1991,
th
during this period only the judgment and decree dated 17 August,
1991 were delivered and passed, respectively. Therefore, on its very
face, sufficient cause for non-appearance not having been shown by
the respondents in the application under Order IX Rule 13, CPC, they
did not deserve any order in their favour.
th
VIII. The appellate order dated 8 October, 2002 was challenged in the
writ petition by the respondents, out of which this appeal has arisen.
st
IX. By an order dated 1 December, 2011, the writ petition was
dismissed as infructuous. However, the learned Judge granted two
months’ time to seek recall of such order in case any question
survived for decision.
st
X. The order dated 1 December, 2011 was passed in the absence of
the respondents, who were the petitioners in the writ petition.
XI. More than six and a half years later, the respondents sought recall of
st
the order dated 1 February, 2011 together with an application for
condonation of delay. The explanation proffered for the delay was
that the respondents had not been informed by their counsel that the
st
writ petition stood dismissed as infructuous vide order dated 1
December, 2011.
XII. By the impugned order, the High Court allowed the prayer for
st
condonation of delay, recalled the order dated 1 December, 2011,
allowed the prayer for amendment and then proceeded to allow the
4
writ petition. The appellate order confirming dismissal of the
application under Order IX Rule 13, CPC was set aside as well as the
th
ex-parte decree dated 17 August 1991.
C ONTENTIONS O N B EHALF O F T HE P ARTIES
3. Mr. Partha Sakha Datta, learned senior counsel for the appellants was
overly critical of the impugned judgment and order. According to him,
absolutely incorrect tests were applied by the learned Judge while allowing
the writ petition and the impugned order is, thus, indefensible.
4. Mr. Sukumar Pattjoshi, learned senior counsel for the respondents, on the
other hand appealed to the conscience of the Court not to interfere with the
discretion exercised by the learned Judge in favour of the respondents. He
contended that the ultimate effect of the impugned order is to ensure a fair
trial which the respondents missed on the earlier occasion due to reasons
absolutely beyond their control. Accordingly, he prayed that the appeal be
dismissed.
I SSUE
5. The solitary issue emerging for adjudication by us is whether the High Court
was justified on facts and in law to allow the writ petition of the respondents
in the manner it did?
A NALYSIS AND R EASONS
6. We have heard Mr. Datta and Mr. Pattjoshi and perused the materials on
record.
st
7. The writ petition of the respondents stood dismissed as infructuous on 1
December, 2011 along with multiple other writ petitions in the process of
5
weeding out matters, which the High Court felt had become infructuous by
efflux of time. The learned Judge of the High Court, however, was conscious
that there could be writ petitions which involved question(s) surviving for a
decision but the petitioner(s) in such petitions had not been represented on
that day. Accordingly, the learned Judge observed that recall could be
sought within a period of two months, meaning thereby that if an
application for recall were filed, recall of the order of dismissal and
restoration of the writ petition would be a mere formality.
th
8. The respondents applied for recall as late as on 5 June, 2018. By then 7
(seven) years had passed. We have gathered from the papers forming part
of the paper book that the respondent no.1 is a lawyer. Even if he were not
a lawyer, nothing much would turn on it. The period of 7 (seven) years is
sufficiently long and considered in the light of the fact that the decree of
the trial court had been executed and the impugned sale deed cancelled,
the respondents should have woken up from their slumber earlier. This
delay itself would constitute sufficient reason for not condoning the delay
in filing the application for recall of the order dismissing the writ petition as
infructuous. However, we propose to take a lenient view having regard to
the explanation proffered by the respondents that their lawyer did not
inform them that the writ petition had been dismissed. For the moment, we
shall assume that there was sufficient ground for the respondents not to
apply for recall earlier and that the learned Judge was justified to (i)
condone the delay in presentation of the recall application; (ii) recall the
st
order dated 1 December, 2011 and (iii) restore the writ petition to file.
6
However, by no means should we be understood to lay down any law that
whenever a litigant places the blame on the lawyer by pleading that it was
the lawyer’s fault or mistake that resulted in his (litigant’s) misfortune, the
same has invariably to be accepted.
9. Moving forward, we have found the grounds assigned by the learned Judge
for allowing the writ petition to be quite strange. The learned Judge did not
at all discuss what was the case set up by the respondents while seeking
recall of the ex parte decree and what the defence of the appellant was in
his written objection. The reasons given in the appellate order upholding
dismissal of the application under Order IX Rule 13, CPC seem to have gone
th
unnoticed. Despite issues having been framed as late as on 18 January,
1988, the ignorance of the learned Judge becomes apparent when in the
operative part of the impugned order directions are given for framing of
issues. Over and above all these, the learned Judge appears to have set
aside the ex parte decree passed by the trial judge as if he were sitting in
appeal and exercising appellate jurisdiction over such decree. This is
evident from a bare reading of the impugned order. Relevant observations
therefrom read as follows:
… I have gone through the ex parte judgment and decree passed by the
th
trial court on 17 August, 1991 and find that the trial court has simply
proceeded to record statement of plaintiff and had decreed the suit. He
has referred to the written statement filed by the defendant but has not
considered it only on the ground that court had proceeded ex parte in
the matter.
In my considered view, while the court was proceeding ex parte , the
court ought to have considered the written statement and defence taken
therein.
It is well settled law that whenever the suit filed and finally judgment is
passed, it is an adjudication of lis between the parties. There has to be
7
independent application of mind as to the issues emerging out from the
plaint allegations and written statement if filed. There has to be a proper
adjudication and only then it can be said that to be formal declaration
of judgment to fall within the meaning of Section 2(2) of C.P.C.
In view of the above, this petition holds merit and is accordingly allowed.
…
Consequent upon the aforesaid observations, the learned Judge did what
we have recorded above together with directions to expedite a decision on
the suit.
10. We are not so much dismayed by the outcome of the writ petition but rather
the manner in which the learned Judge proceeded and also by the reasons
assigned for granting the prayers of the respondents.
11. In exercise of jurisdiction under Article 227 of the Constitution, the learned
Judge was required to examine whether the respondents had shown
sufficient cause for staying away from the proceedings of the suit after filing
their written statement; in other words, whether despite showing sufficient
cause, not only the trial court but also the appellate court fell in error in not
accepting the explanation proffered and in setting aside the ex parte
decree.
12. As referred to above, the learned Judge barely considered the application
under Order IX Rule 13, CPC filed by the respondents and, thus, without
even looking into the cause shown allowed the prayer for setting aside of
the ex parte decree perceiving the judgment preceding it to be flawed on
merits.
13. We have perused the affidavit accompanying the applications under Order
IX Rule 13, CPC and Section 5 of the 1963 Act in the Misc. Case. It was
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averred therein that the respondent no. 1 was looking after the case on his
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own behalf and on behalf of the other respondents; that, he fell sick on 15
August, 1991; and that, he was so sick that he was unable to walk. A
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medical certificate dated 30 November, 1991 issued by a local doctor was
sought to be relied on certifying that the respondent no. 1 was under his
th th
treatment from 15 August 1991 to 30 November, 1991. A written
objection to the application was filed by the appellants wherein it was
averred that the respondent no.1 was a resident of the same village where
the appellant no.1 resided and that he has seen the respondent no. 1
moving around in a healthy state and that the medical certificate was
bogus. It was further pleaded that the respondents were deliberately not
participating in the proceedings and filing repeated applications for
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adjournment for which they were set ex parte on 24 April, 1991. On 2
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July, 1991, evidence was recorded and 6 August, 1991 was fixed for
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arguments. On 24 April, 2 July, 1991 and 6 August, 1991, the
respondent no.1 was not ill as per his own case. Why did the respondents
stay away from the proceedings had not been explained. Ultimately, the
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suit was decided ex parte on 17 August, 1991.
14. Significantly, even if the plea of the respondent no. 1 that he fell sick from
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15 August, 1991 is accepted, we find that the respondents went on
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seeking adjournments. The appellate court in its order dated 8 October,
2002 noted that on 10 (ten) previous occasions, prayers for adjournment
made by the respondents were allowed. It is also found that the
respondents stayed away from the trial court months before the claimed
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illness of the respondent no.1. No wonder, due to their absence, the
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respondents were set ex parte by the trial court on 24 April, 1991. The
respondents never explained what was the real cause for the suit to proceed
ex parte . The cause shown falls much short of an explanation and we are
inclined to view it as nothing but a lame excuse. In view of the specific
objection taken by the appellants, one would have thought that the
respondents would step on to the witness box and prove the case set up in
the applications. Neither did the respondent no.1 and the co-respondents
nor the so-called attending doctor of the respondent no.1 stepped into the
witness box to prove that the respondent no.1 was ill; the appellant no.1
was not, therefore, proved wrong. Assuming that the respondent no. 1 was
so sick which prevented him from attending the court, there is no
explanation either as to why the other respondents after filing of the written
statement had not shown any interest to contest the suit.
15. While hearing the application under Order IX Rule 13, CPC as well as the
miscellaneous appeal, the trial court and the appellate court, respectively
assigned cogent reasons for not accepting the cause shown by the
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respondents. Since the learned Judge did not refer to the orders dated 23
th
July, 2002 and 8 October, 2002 passed by the said courts at all, we do not
have the benefit of ascertaining how the trial court and the appellate court
went wrong in not allowing the application for setting aside the ex parte
decree.
16. It is truism that vigilance and diligence go hand-in-hand, making them two
sides of the same coin, when it comes to pursuing/defending a legal action.
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In this case, not only vigilance and diligence on the part of the respondents
are woefully lacking but such lack is glaringly apparent.
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17. The respondents faltered to defend the suit even prior to 24 April 1991
when the order setting them ex parte was passed and we find it
incomprehensible as to how the learned Judge of the High Court could be
convinced, so much so that without any reference to the case and counter-
case set up by the parties and the orders passed by the trial court and the
appellate court, the application under Order IX Rule 13, CPC could succeed.
It is only on this short ground (that the respondents did not make out
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sufficient cause for their absence on continuous dates from 24 April 1991
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till the suit was decreed on 17 August 1991) that the impugned order
cannot be sustained in law.
18. Although we have expressed our mind about the inevitable outcome of this
appeal, we have observed with a great sense of disappointment the
observations made by the learned Judge extracted (supra) demonstrating
a clear misconception of the legal position as to the rights of a defendant in
a civil suit where such defendant has been set ex parte. Before parting,
therefore, there is a need to say a few words for the guidance of the courts.
19. Pleadings, either in a plaint or a written statement, constitute the plinth on
which the respective claims and defence of the parties to a civil suit rest.
What a pleading ought to contain is provided in Order VI Rule 2, CPC. Only
material facts, on which the party pleading relies for his claim or defence to
succeed, have to be stated without the evidence by which the pleading is
to be proved. Once the pleadings are complete but the defendant is set ex
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parte , and such order has attained finality, the defendant’s rights suffer a
curtailment. He cannot produce evidence in defence and hence statements,
which are in the nature of factual assertions, cannot be proved by leading
evidence. Generally speaking, the limited right that the defendant, set ex
parte , would have is confined to cross-examining the plaintiff’s witnesses.
The effort has to be directed towards demonstrating that they are not
speaking the truth and, thereby, demolish the case of the plaintiff.
Essentially, therefore, in such a case the defendant has to convince the
court that the case put up by the plaintiff is so false that the court ought
not to accept it. However, if the defendant raises an issue on law which is
traceable in the written statement, for instance, the suit is barred by
limitation or Section 9, CPC is attracted, or if the relief claimed in the suit
cannot be granted for reasons disclosed, the requirement of the defendant
proving such defence as raised in the written statement by leading evidence
may not arise and the court may frame an issue of law and decide the same.
20. We have noticed that the preliminary issue of jurisdiction of the trial court
to receive, entertain and try the suit was decided against the respondents
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vide an order dated 18 January, 1988. The little detail that is decipherable
from the written statement of the respondents is that in view of a local
enactment with regard to the Zamindari system, the respondents claimed
that the trial court did not have jurisdiction. Nevertheless, it does appear
that other issues were framed and since the respondents did not cross-
examine the appellant, whatever he deposed was believed and accepted.
We are left to wonder how the judgment of the trial court could have been
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faulted and the decree set aside on the ground that the defence raised in
the written statement was not considered while granting relief. The
observations of the learned Judge cannot be countenanced with reference
to any provision of law or binding precedent.
21. We have no doubt that it is the flawed approach of the learned Judge which
has resurrected the dispute between the brothers, which was finally decided
over 3 (three) decades back. As has rightly been contended by Mr. Datta,
the impugned order of the High Court being based on irrelevant, illogical
and immaterial observations is clearly indefensible.
C ONCLUSION
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22. The impugned order dated 1 May, 2024 of the High Court is set aside and
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the order of the appellate court dated 8 October, 2002, impugned in the
writ petition, is upheld with the result that the writ petition of the
respondents filed in the High Court shall stand dismissed.
23. The civil appeal, accordingly, stands allowed.
24. The pending application(s), if any, stands closed.
…………………………J.
(DIPANKAR DATTA)
…………………………J.
(MANMOHAN)
NEW DELHI;
APRIL 22, 2025.
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