Specific performance suits cannot be decreed without framing issues; the rejection of an application under Order IX Rule 13 is improper if the trial court fails to do so.

JUDGMENT :

Chandra Kumar Rai, J.

1. Heard Sri R.C. Singh, learned Senior Counsel assisted by Sri N.D. Shukla, learned counsel for the defendant-appellant and Sri Anadi Krishna Narayan, learned counsel, holding the brief of Sri Sarthak Verma, learned counsel for the plaintiff-respondents.

2. Brief facts of the case are that suit for specific performance of contract filed by plaintiff-respondent, was decreed ex parte by the trial court vide judgment and decree dated 12.11.2024. Against the ex parte judgment and decree dated 12.11.2024, application under Order IX Rule 13 of CIVIL PROCEDURE CODE , 1908 (hereinafter referred to as the "C.P.C.") has been filed on behalf of the defendant-appellant on 21.11.2024. Against the application under Order IX Rule 13 of the C.P.C., an objection was filed on behalf of the plaintiff. The trial court vide judgment dated 20.2.2025, has rejected the application filed on behalf of the defendant under Order IX Rule 13 of C.P.C. Hence, the instant First Appeal From Order under Section 104 read with Order 43 Rule 1(d) of the CIVIL PROCEDURE CODE for following relief:-

"The relief sought by means of present FAFO is that the present appeal may be allowed, order dated 20.2.2025 passed by the Additional Civil Judge (Sr. Division), Court No.2, Bulandshahar in Misc. Case No. 217 of 2024 in Original Suit No. 784 of 2024 between Abhishek Kumar and another vs. Yudhisthir Yadav and ex parte decree dated 22.11.2024 may be set aside and suit may be decided on merit after full trial."

3. This Court entertained the matter on 12.3.2025 and granted interim protection in the matter.

4. Learned Senior Counsel for the appellant submitted that suit for specific performance cannot be decreed without framing issues in the suit. He submitted that suit was decreed in ex parte manner vide judgment and decree dated 12.11.2024 within period of four months. He further submitted that within time application under Order IX Rule 13 of the C.P.C. has been rejected on misconceived grounds. He submitted that ex parte judgment and decree passed by the trial court as well as the order, rejecting the application under Order IX Rule 13 C.P.C., should be set aside and suit for specific performance should be decided afresh after framing issues, giving opportunity to parties to lead evidence in accordance with law.

5. On the other hand, Sri Anadi Krishna Narayan, learned counsel, holding the brief of Sri Sarthak Verma, learned counsel for the plaintiff-respondents submitted that the application under Order IX Rule 13 of the C.P.C. filed by the defendant-appellant has been rightly rejected under the impugned order. He further submitted that the suit was decreed as ex parte as the defendant was avoiding the service of notice. He submitted that no interference is required and the instant First Appeal From Order filed by the appellant should be dismissed. He further submitted that if the Hon'ble Court is of the view that application filed under Order IX Rule 13 C.P.C. requires fresh consideration, the matter may be sent back before trial court for fresh consideration of application under Order IX Rule 13 C.P.C.

6. I have considered the arguments advanced by learned counsel for the parties and perused the records of the trial court which was summoned vide order of this Court dated 12.3.2025.

7. There is no dispute about the fact that suit for specific performance filed on 12.7.2024 by the plaintiff-respondent has been decreed ex parte within a period of 4 months vide judgment and decree dated 12.11.2024. There is al