Kanchhu vs Prakash Chand

2025 INSC 542 REPORTABLE

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

JUDGMENT

DIPANKAR DATTA, J.

THE APPEAL

1. This civil appeal is directed against a judgment and order dated 1st May,

20241 of a learned Judge of the High Court of Judicature at Allahabad

allowing a writ petition2 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 Digitally signed by JATINDER KAUR prior to the writ petition being allowed.

Date: 2025.04.22 18:18:12 IST Reason:

1

impugned order 2 Writ C No.378 of 2003 THE FACTS

2. Facts giving rise to this appeal, in a nutshell, are:

I. Appellant, as plaintiff, instituted a civil suit3 on 22nd May, 1987 for

cancellation of a sale deed in the court of the Munsif, Khurja, District

Bulandshahr, Uttar Pradesh4. The prayer in the plaint was for

cancellation of a registered sale deed5, 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

18th September, 1987. They claimed that the appellant was their

brother. After relations between the brothers soured, the appellant

instituted the suit with ill-motive. Issues were framed on 18th

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 deed was registered in the Office of Sub-Registrar, Khurja, bearing No. 5179 dated 05th September, 1984 2 the proceedings, an order dated 24th April, 1991 was passed setting

the respondents ex-parte. Evidence of the appellant was recorded on

2nd July, 1991. Since the respondents did not appear, the appellant

faced no cross-examination. The suit was posted for arguments and

arguments were heard on 6th August, 1991. Finally, the suit was

decreed ex parte by the trial court on 17th August 1991.

IV. An application under Order IX Rule 13 of the Code of Civil Procedure,

19086 together with an application under Section 5 of the Limitation

Act, 19637 was filed by the respondents8.

V. By an order dated 3rd November, 1997, the application for

condonation of delay was rejected, thereby resulting in dismissal of

the Misc. Case. The order of dismissal was carried in revision9

whereupon such revision was allowed. The prayer for condonation of

delay was granted and the trial court was directed, by an order dated

19th 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

application and dismissed it by an order dated 23rd July, 2002.

VII. The order dated 23rd July, 2002 was then carried in a miscellaneous

appeal10, which was dismissed by the District Judge, Gautam Budh

Nagar on 8th 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 although the respondent no.1 claimed to have taken ill on 15 th

August, 1991 and such illness continued till 30th November, 1991,

during this period only the judgment and decree dated 17th 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.

VIII. The appellate order dated 8th October, 2002 was challenged in the

writ petition by the respondents, out of which this appeal has arisen.

IX. By an order dated 1st 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.

X. The order dated 1st 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

the order dated 1st 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

writ petition stood dismissed as infructuous vide order dated 1st

December, 2011.

XII. By the impugned order, the High Court allowed the prayer for

condonation of delay, recalled the order dated 1st 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

ex-parte decree dated 17th August 1991.

CONTENTIONS ON BEHALF OF THE PARTIES

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.

ISSUE

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?

ANALYSIS AND REASONS

6. We have heard Mr. Datta and Mr. Pattjoshi and perused the materials on

record.

7. The writ petition of the respondents stood dismissed as infructuous on 1 st

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.

8. The respondents applied for recall as late as on 5th 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

order dated 1st 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

unnoticed. Despite issues having been framed as late as on 18th 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 trial court on 17th 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

own behalf and on behalf of the other respondents; that, he fell sick on 15th

August, 1991; and that, he was so sick that he was unable to walk. A

medical certificate dated 30th November, 1991 issued by a local doctor was

sought to be relied on certifying that the respondent no. 1 was under his

treatment from 15th August 1991 to 30th 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

adjournment for which they were set ex parte on 24th April, 1991. On 2nd

July, 1991, evidence was recorded and 6th August, 1991 was fixed for

arguments. On 24th April, 2nd July, 1991 and 6th 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

suit was decided ex parte on 17th August, 1991.

14. Significantly, even if the plea of the respondent no. 1 that he fell sick from

15th August, 1991 is accepted, we find that the respondents went on

seeking adjournments. The appellate court in its order dated 8th 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

respondents were set ex parte by the trial court on 24th 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

respondents. Since the learned Judge did not refer to the orders dated 23rd

July, 2002 and 8th 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.

17. The respondents faltered to defend the suit even prior to 24th 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

sufficient cause for their absence on continuous dates from 24th April 1991

till the suit was decreed on 17th 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

vide an order dated 18th 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.

CONCLUSION

22. The impugned order dated 1st May, 2024 of the High Court is set aside and

the order of the appellate court dated 8th 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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