IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 9 OF FEBRUARY, 2026 MISC. PETITION No. 4778 of 2025 LAKHAN KALAWAT Versus HARDAYAL PATEL AND OTHERS Appearance:

Shri Prateek Dubey - Advocate for the petitioner.

Shri Anuj Agarwal- Advocate for respondent No.1.

ORDER The present petition has been filed challenging the order Annexure P-

2 passed by the trial Court dated 31.01.2025 whereby the trial Court has rejected application under Order 9 Rule 13 CPC for setting aside ex-parte decree. Further challenge is made to the order dated 03.04.2025 passed by the appellate Court whereby the appellate Court has rejected appeal against the said order and refused to set aside the ex-parte decree.

2. The learned counsel for the petitioner has vehemently argued before this Court that to consider an application for setting aside ex-parte decree, the matter has to be liberally construed by the Court and once the defendant approaches the Court within the statutory period then all the more liberal approach has to be taken by the Court. The sufficient cause refers to the date on which the absence was made a ground for proceeding an ex- parte, and previous circumstances occurring prior to that date are irrelevant.

Hence the impugned order passed by the trial Court as well as by the appellate Court should not be given stamp of approval by this Court and the petitioner being defendant is entitled to have a decree on merits after hearing him, because an ex-parte decree results in miscarriage of justice which should not be permitted by this Court.

3. Per contra, it is vehemently argued by counsel for the respondent-

plaintiff that the petitioner-defendant had wilfully absented himself on the date of hearing before the trial Court and it is not a case where there is any sufficient cause shown but here non-appearance was intentional and malafide, just to avoid decision in the suit and then to cause hindrance in the execution of decree by moving application for setting aside ex-parte decree. It is contended that during pendency of the present petition even the decree has been executed and possession has been handed over to the plaintiff in month of December, 2025. It is further contended that the defendant had relied on various medical papers to contend that he was sick at the time when the case was fixed for evidence of defendant and the medical papers also do not inspire any confidence and even the doctor issuing the said medical papers was not offered to be examined in evidence. Therefore, it is contended that the impugned order deserves to be maintained.

4. Heard.

5. In the present case, the petitioner-defendant was proceeded ex-parte on 20.02.2023 and the ex-parte judgement and decree was passed on 10.03.2023. Application for setting aside ex-parte decree was filed on 5.04.2023 which is within the statutory limitation period. Therefore, in the first flush the application for setting aside ex-parte decree seems to be bonafide in nature.

6. However, it could not be disputed by the counsel for petitioner during course of argument that there is a previous decree between the same parties dated 27.09.2017 whereby there is a title suit of the suit property decreed in favour of the plaintiff and thereafter the plaintiff had filed a consequential suit for recovery of possession on the basis of declaration of title in the previous suit.

7. In view of the aforesaid factual background there appears to be some force in argument of learned counsel for the plaintiff that the defendant-petitioner anyhow wanted to linger on the proceedings of the subsequent suit because the outcome of the subsequent suit must have been a foregone conclusion for him and he only wanted to linger on the subsequent suit so as to delay handing over the possession of the suit property to the plaintiff.

8. The defendant was proceeded ex-parte on 20.02.2023 and his application for setting aside ex-parte decree has been rejected by the trial Court noting t