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SUPREME COURT OF INDIA
DIPANKAR DATTA, MANMOHAN, JJ.
Kanchhu – Appellant
Versus
Prakash Chand and Others – Respondents
Civil Appeal No. 5319 of 2025 [Arising Out of SLP (C) 20978 of 2024]
Decided On : 22-04-2025
(A) Civil Procedure Code, 1908 – Order IX Rule 13 – Setting aside ex-parte decree – Delay in filing recall application – Vigilance and diligence go hand-in-hand, making them two sides of same coin, when it comes to pursuing/defending a legal action – Period of seven years is sufficiently long period – Such delay itself would constitute sufficient reason for not condoning delay in filing application for recall of order dismissing writ petition as infructuous – While hearing application under Order IX Rule 13, CPC as well as miscellaneous appeal, Trial Court and Appellate Court, respectively assigned cogent reasons for not accepting cause shown by respondents – In this case, not only vigilance and diligence on part of respondents are woefully lacking but such lack is glaringly apparent – Impugned order allowing application under Order IX Rule 13, CPC cannot be sustained in law. (Paras 15, 16 and 17)
(B) Civil Procedure Code, 1908 – Order VI Rule 2 and Order XIV Rule 1 – Contents of Pleadings and framing of issue – Only material facts, on which party pleading relies for his claim or defence to succeed, have to be stated without evidence by which pleading is to be proved – Once pleadings are complete but defendant is set ex-parte and such order has attained finality, defendant’s rights suffer curtailment – He cannot produce evidence in defence and statements which are in nature of factual assertions, cannot be proved by leading evidence – Limited right that defendant, set ex-parte, would have is confined to cross-examining plaintiff’s witnesses – Effort has to be directed towards demonstrating that they are not speaking truth and, thereby, demolish case of plaintiff – Essentially, in such a case defendant has to convince court that case put up by plaintiff is so false that court ought not to accept it – However, if defendant raises an issue on law which is traceable in written statement like suit is barred by limitation or Section 9, CPC is attracted, or if relief claimed in suit cannot be granted for reasons disclosed, requirement of defendant proving such defence as raised in written statement by leading evidence may not arise and court may frame an issue of law and decide the same. (Para 19)
Facts of the case:
This civil appeal is directed against a judgment and order dated 1st May, 2024 of a Judge of High Court of Judicature at Allahabad allowing writ petition [Writ (C) No. 378 of 2003] under Article 227 of Constitution of India filed by respondents. Impugned order also allowed multiple interlocutory applications, viz. application for condonation of delay in filing a recall application; application for recall/restoration, application for amendment prior to writ petition being allowed.
Findings of Court:
It is the flawed approach of Judge which has resurrected the dispute between brothers, which was finally decided over 3 (three) decades back. Impugned order of the High Court being based on irrelevant, illogical and immaterial observations is clearly indefensible.
Result : Civil appeal allowed.
Key Points: - The judgment disallows condoning seven-year delay in recalling an ex-parte writ dismissal, emphasizing vigilance/diligence in pursuing/defending actions (!) (!) . - If a defendant is ex-parte and the order is final, their ability to lead evidence is limited; they may cross-examine or raise legal issues from the written statement, but factual evidence requires showing sufficient cause and may be restricted (!) (!) . - High Court’s recall of an infructuous writ petition and restoration of the writ requires careful consideration of cause shown for absence and the adequacy of defence; the Supreme Court reviews such recalls for proper application of law and procedure (!) (!) (!) . - The case critiques the High Court’s approach for entertaining recall without proper analysis of the ex-parte decree and the writ petition’s status, emphasizing that ex-parte judgments require independent adjudication on issues arising from plaint and written statement (!) (!) . - The final outcome sets aside the High Court order and upholds the appellate court’s order, thereby dismissing the writ petition (!) (!) . - The matter involves considerations under CPC Order IX Rule 13, Order VI Rule 2, and related constitutional reliefs; the analyze warns against treating recall as a mere formality (!) (!) . - The judgment states that:
JUDGMENT :
DIPANKAR DATTA, J.
THE APPEAL:
1. This civil appeal is directed against a judgment and order dated 1st May, 20241 [impugned order] of a learned Judge of the High Court of Judicature at Allahabad allowing a writ petition2 [Writ (C) No. 378 of 2003] 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 prior to the writ petition being allowed.
THE FACTS:
2. Facts giving rise to this appeal, in a nutshell, are:
(I) Appellant, as plaintiff, instituted a civil suit3 [Suit No. 105/1987] on 22nd May, 1987 for cancellation of a sale deed in the court of the Munsif, Khurja, District Bulandshahr, Uttar Pradesh.4 [Trial Court] The prayer in the plaint was for cancellation of a registered sale deed5 [deed was registered in the Office of Sub-Registrar, Khurja, bearing No. 5179 dated 05th September, 1984] 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 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 [CPC] together with an application under Section 5 of the Limitation Act, 19637 [1963 Act] was filed by the respondents.8 [giving rise to Misc. Case No. 74 of 1991]
(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 [Civil Revision No. 174 of 1997] 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 [M.C.A. No. 52/2002] which was dismissed by the District Judge, Gautam Budh Nagar on 8th October, 2002. It was held by the appellate court that although the respondent no. 1 claimed to have taken ill on 15th 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
AI
(1) Setting aside ex-parte decree – Delay of seven years in filing recall application cannot be condoned.(2) Vigilance and diligence go hand-in-hand, making them two sides of same coin, when it comes....
The High Court should not entertain a revision petition under Article 227 against an ex-parte judgment and decree when a specific remedy of appeal is available under the Code of Civil Procedure itsel....
Setting aside ex-parte decree – Once ex-parte decree is set aside and suit is restored to file, defendants cannot be relegated back to position prior to date of hearing of suit.
Ex parte decree not set aside for uncorroborated delay excuse despite missing defendant claim; prior knowledge inferred from admissions; Art 227 bars reappreciating evidence in absence of jurisdictio....
Setting aside ex-parte decree – Facts and events relating to passing of an ex-parte decree are distinct from facts and events relating to delayed filing of application for setting aside of ex-parte d....
Limitation – Discretionary power of court to condone delay must be exercised judiciously and it is not to be exercised in cases where there is gross negligence and/or want of due diligence on part of....
Setting aside ex-parte decree – Real test for adjudication of a petition under Order IX Rule 13 CPC is whether litigant upon learning about ex-parte decree takes immediate steps in filing application....
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