The court emphasized that transposed defendants retain the right to participate in proceedings, condemning technical dismissals that infringe upon their legal rights.

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE DEEPAK KHOT st ON THE 21 OF AUGUST, 2025 MISC. PETITION No. 4206 of 2025 SMT. MALTI AND OTHERS Versus SMT. ANITA AND OTHERS Appearance:

Shri Surya Prakash Pathak - Advocate for the petitioners.

Shri Rajendra Kumar Singh - Advocate for the respondent No.1.

Shri Amit Vikram Pandey - Panel Lawyer for the respondent-State.

ORDER Present petition has been filed by the petitioners challenging the order dated 07.07.2025 (Annexure P/4) passed by the Second Civil Judge, Senior Division, Betul in RCS A 21/2019, whereby the application submitted by the petitioners under Order 9 Rule 7 of CPC alongwith Section 5 of the Limitation Act , has been dismissed.

2. It has been submitted by the learned counsel for the petitioner that the learned court below has dismissed the application on the ground that the petitioners, who were earlier plaintiffs, have been transposed as defendant Nos. 20, 21 and 22 in the suit. It is submitted that the petitioners are sisters of contesting defendant Nos. 1 to 3. The plaintiff is now another sister of the petitioners. As a compromise was under process, the application for withdrawal of the suit submitted by the petitioners was dismissed and Signature Not Verified Signed by: RAGHVENDRA therefore, as the suit is for partition, the petitioners have been transposed as defendant Nos. 20, 21 and 22. It is further submitted that because of such technicalities, the petitioners remained absent on 26th March, 2025 and declared ex-parte. It has been submitted that for setting aside the said ex- parte order, the application has been submitted under Order 9 Rule 7 of CPC alongwith Section 5 of the Limitation Act , which has been dismissed vide impugned order dated 07.07.2025 (Annexure P/4).

3. It has been submitted by the learned counsel for the petitioners that the dismissal is too technical and harsh in nature. The petitioners being sisters of the plaintiffs in a partition suit are necessary parties and required to be heard before adjudication of the rights of the parties. It is further submitted that under Order 9 Rule 7 of CPC , the power is vested with the court to set aside the order of declaring petitioners ex-parte. The said power has not been exercised by the court below and erred in its jurisdiction by not allowing the application submitted under Order 9 Rule 7 of CPC .

4. Per contra, refuting the submissions of the petitioners, learned counsel for the respondent No.1 has submitted that the application for setting aside the ex-parte order was not filed at an appropriate stage and after 2-3 hearings, the application was filed, which could not be allowed as per the provisions of Order 9 Rule 7 of CPC .

5. Heard the learned counsel for the parties and perused the record.

6. It is evident from the impugned order that the learned court below has taken a very hyper-technical view in dismissing the application under Order 9 Rule 7 of CPC . The court below has observed that because the Signature Not Verified Signed by: RAGHVENDRA petitioners were earlier plaintiffs and then on the application being filed, they have been transposed as defendants who were not present despite of transposition. The application has been submitted just after 48 days after the order of declaring them as ex-parte has been passed. It has been submitted that no substantial proceeding has been commenced in the suit as yet and the suit is still pending on some miscellaneous applications of the parties, therefore, no prejudice would be caused to either of the parties if the order of ex-parte is set aside.

7. The Hon'ble Apex Court in Vijay Kumar Madan and Others Vs.

R.N. Gupta Technical Education Society - (2002) 5 SCC 30 has explained the purpose and object of Order 9 Rule 7 of CPC . The relevant para-7 is reproduced as under:-

"7. Power in the court to impose costs and to put the defendant- applicant o