IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE HIMANSHU JOSHI

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ON THE 13 OF OCTOBER, 2025 MISC. APPEAL No. 3832 of 2005 P.D.MAHESHWARI Versus MP.AGRO INDUSTRIES CORPORATION LTD.

Appearance:

Shri Saket Agrawal - Advocate for the appellant.

Shri Jai Shukla - Advocate for the respondent.

ORDER The instant appeal under Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 [for short 'CPC'] , has been filed by the appellant being aggrieved with the order dated 25.10.2005 passed by IX Additional District Judge, Bhopal, in M.J.C. No.35/2004 whereby the learned Court has rejected the application under Order 9 Rule 13 r/w Section 151 of CPC filed along with an application under Section 5 of the Limitation Act for setting-aside the ex-parte judgment and decree dated 25.02.2000 passed in C.S. No.34-

B/91 by IX Additional District Judge, Bhopal.

2. Brief facts of the case are that the respondent/plaintiff had filed a suit for recovery of an amount of Rs.32,792/- with interest @12% per annum. The learned trial Court had passed an ex-parte judgment and decree dated 25.02.2000 and ex-parte proceedings were initiated against the appellant/defendant on 05.10.1993. The execution has been filed for an amount of Rs.1,35,209.86 by the plaintiff, and therefore, he had filed an application under Order 9 Rule 13 of CPC along with an affidavit for setting- aside the ex-parte decree along with an application under Section 5 of the Limitation Act for condoning the delay in filing the application under Order 9 Rule 13 of CPC; vide impugned order, the learned trial Court has dismissed both these applications. Hence, this appeal.

3. Learned counsel for the appellant has argued that the learned trial Court erred in dismissing the applications filed under Order 9 Rule 13 of CPC and section 5 of the Limitation Act. The reasonings and findings given by the trial Court for dismissing the above two applications and for not setting-aside the ex-parte decree are all perverse, erroneous, unreasonable and arbitrary. He has further argued that the appellant, by evidence, has proved that there was sufficient cause for his non-appearance on 05.10.1993 i.e. the date on which ex-parte proceedings were initiated against him i.e. defendant. The learned trial Court has also failed to see that the plaintiff had not filed any reply to the application filed for condonation of delay. The counsel presenting the case on behalf of the appellant had wrongly pleaded no instructions before the Court below and instead of issuing notice to the appellant, the learned trial Court had proceeded ex-parte and the counsel so appointed did not inform the appellant regarding his plea of no instructions. According to the appellant, it is a well settled principle of law that a litigant should not suffer for the mistake of his counsel.

4. On the other side, learned counsel for the respondent has opposed the submissions made by learned counsel for the appellant arguing that in the absence of sufficient cause, such a huge delay could not be condoned and thus, according to him, the learned trial Court has rightly dismissed the applications and no interference in the order impugned is required.

5. Heard the rival contentions of learned counsel for the parties.

6. The Supreme Court in the matter of G.P. Srivastava Vs. R.K.

Raizada & Others reported in AIR 2000 SC 1221, while construing the sufficient cause employed while dealing with an application under Order 9 Rule 13 of CPC, has held as under:

"7. Under Order 9 Rule 13 CPC, an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any “sufficient cause” from appearing when the suit was called on for hearing. Unless “sufficient cause” is shown for nonappearance of the defendant in the case on the date of hearing, the court has no power to set aside an exparte decree. The words “was prevented by any sufficien