2024:CGHC:43492 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 106 of 2019 • Smt. Purni Sethiya W/o Chandrabhan Sethiya Aged About 43 Years R/o Village Mooli, Tahsil Bakawand, District Bastar, Chhattisgarh ...Appellant versus

1. Mahadev S/o Mayaram Aged About 61 Years 2. Mst. Ghini Wd/o Mano Aged About 54 Years Both are R/o Village Chhote Devda, Tahsil Bakawand, District Bastar, Chhattisgarh

3. State of Chhattisgarh Through- The Collector Bastar, Jagdalpur ... Respondents For Appellant : Mr. Keshav Dewangan, Advocate For Respondents No. 1 & 2 : Mr. Tapan Chandra, Advocate appears on behalf of Mr. T.K. Jha, Advocate For State/Respondent No.3 : Mr. Sanjeev Kumar Agrawal, PL Hon'ble Shri Justice Deepak Kumar Tiwari

Order On Board

08/11/2024

1. This Miscellaneous Appeal has been filed under Order 43 Rule 1 (d) of the CPC as the application preferred by the appellant/defendant No.1 under Order 9 Rule 13 of the CPC to set aside the ex-parte decree which was passed in Civil Suit No.6A/2016 by the 3^rd Additional District Judge, Bastar at Jagdalpur vide judgment dated 29.07.2017, was dismissed vide order dated 27.07.2019 passed in MJC No.04/2012 by the 3^rd Additional District Judge, Bastar at Jagdalpur.

2. Necessary facts of the case are that the plaintiffs/respondents No.1 & 2 have filed a Suit for declaring the sale deed and Power of Attorney to be null and void and also for permanent injunction. In the said Suit, plaintiffs have taken a specific plea that a fraud has been committed by the appellant/defendant. Thereafter, the appellant/defendant has engaged a lawyer and filed a written statement. In the written statement, it has been averred that the land was duly recorded in the name of the purchaser and she is also in possession of the subject property and has not played any fraud with the plaintiffs. On 24.07.2017, the lawyer, without informing the appellant, pleaded no instruction in the matter; therefore, the trial Court proceeded ex-parte and on 29.07.2017 passed an ex-parte judgment. On 03.04.2018, the said fact came to the notice of the appellant when she made an inquiry about the case. Thereafter, the appellant moved an application for obtaining the certified copies and on 28.04.2018 preferred an application along with an affidavit. The respondents/plaintiffs filed the reply and denied the assertion made in the application.

3. After hearing the parties, the learned trial Court dismissed the said application vide order dated 27.07.2019 by observing that the delay was not sufficiently explained. Hence this Appeal.

4. Learned counsel for the appellant submits that as the parties had duly engaged a lawyer and in the Civil litigation, when a counsel has been engaged, it is not required for the party to appear at each and every date of hearing. He submits that it is well established that a party cannot suffer for the fault of the lawyer, as before pleading no instruction before the trial Court, no notice or information has been given by the lawyer to the appellant. Even the concerned court has also not issued any notice before proceeding ex-parte. So he would submit that the ex-parte judgment and decree are bad in law. He would further submit that the trial Court has adopted a hyper-technical approach and that the delay was not sufficiently explained, though in the application preferred under Order 9 Rule 13 of the CPC, it has been stated that the appellant has duly engaged the lawyer, but the lawyer pleaded no instruction before the court; and as such, the Court has proceeded ex-parte. When the appellant inquired about the case, she came to know about the status of the case and thereafter obtained certified copies and moved an application for setting aside of the said ex-parte decree. So, in such circumstances, there is no legal requirement for filing a formal application under Section 5 of the Limitation Act, 1963, when the delay was sufficiently explained in the application itself and the said aspect has been dealt with in the mat