Smt. Baljeet Kaur vs Smt. Godavari & Ors.

Plaintiff pleaded that the suit land had originally been permanently allotted to her deceased husband, Baburam, as a Pong Dam displaced person and that, upon his demise, plaintiff along with defendants No.1 to 3 (respondents no.2 to 4 herein) succeeded to the land as his Class-I legal heirs. It was alleged that defendants No.1 to 3 fraudulently got her name deleted from the revenue records and transferred the suit land in favour of defendants No.4 to 6 (respondents No.5 to 7 herein) vide registered sale deed dated 04.08.1998 (executed on 16.03.1998) and that defendants No.4 to 6 thereafter transferred the land in favour of present appellant - defendant No.7 vide registered sale deed dated 14.05.2004. On these grounds, plaintiff prayed that both the aforesaid registered sale deeds dated 04.08.1998 and 14.05.2004 be declared null, void and ineffective as against her rights in the suit land and further that defendants be restrained from interfering with her possession and enjoyment.

Present appellant - defendant No.7 entered appearance and filed written statement, alleging that she was bona fide purchaser for valuable consideration, having purchased the land after inspecting the revenue records and satisfying herself regarding the title and possession of her vendors and that she was in actual and continuous physical possession of the suit land and therefore, maintained that aforesaid registered sale deeds dated 04.08.1998 and 14.05.2004 were valid and lawful.

On the basis of rival pleadings, learned Trial Court framed eight issues, inter alia casting the burden of establishing that registered sale deeds in question were illegal, null, and void upon plaintiff-respondent No. 1, while the burden of proving issues No.3, 4, 5, 6 and 7, including those relating to cause of action, limitation and plaintiff’s status as a Class-I heir, was placed upon defendants. Subsequent to the framing of issues, the suit remained pending at the stage of plaintiff's evidence since the year 2018.

During the pendency of the suit, Shri Dharampal Godara, Advocate, who had been engaged by appellant to conduct her defence, passed away. On 19.07.2024, when the matter was called on for hearing, neither the appellant, nor her counsel, nor any of the co-defendants appeared, whereupon learned Trial Court directed the suit to proceed ex-parte against defendants No.1-7.

Upon subsequently coming to know of the demise of her counsel and of order dated 19.07.2024 directing the suit to proceed ex-parte against her, appellant engaged Shri Gurtej Singh, Advocate, and preferred an application under Order IX Rule 7 CPC seeking recall of said order dated 19.07.2024, on the ground that she is an aged lady of about 70 years residing in a distant rural chak, who remained unaware of her counsel’s death, which accounted for her absence when the suit was called on for hearing on 19.07.2024. Said application was listed on 28.10.2024 for filing of reply; however, on said date, the counsel engaged by appellant could not remain present, whereupon learned Trial Court dismissed the application seeking setting aside of ex-parte proceedings for non-prosecution, without adjudicating the same on merits.

Thereafter, plaintiff-respondent No.1 examined herself as the sole plaintiff witness and produced documents in support of the claim, which testimony remained un-cross-examined and the documents remained unchallenged. The issues in respect of which the burden of proof was cast upon defendants were decided against them on the ground that no evidence had been led on their behalf. Accordingly, learned Trial Court proceeded to pronounce ex-parte judgment and decree dated 29.01.2025 in favour of plaintiff-respondent No.1, declaring aforesaid sale deeds dated 04.08.1998 and 14.05.2004 as illegal, void and inoperative as against the rights of plaintiff-respondent No. 1 (taken to be whole of 6.325 hectares) and granted permanent injunction against defendants.

Thereafter, within a period of 9 days from the passing of ex-parte decree, appellant preferred an application under Order IX Rule 13 read with Section 151 CPC, seeking setting aside of said ex-parte decree dated 29.01.2025. A similar application was preferred by defendants No.4 to 6 (respondents No.5 to 7), however, on grounds distinct from that of appelant. Learned Trial Court, however, by impugned order dated 05.08.2026, rejected said applications, observing in relation to appellant’s application that appellant’s earlier application under Order IX Rule 7 of the Code had already been dismissed in default for non-appearance, that the appellant had full knowledge of ex-parte proceedings and that she had, therefore, failed to act diligently and consequently, no sufficient cause was made out for setting aside ex-parte decree.

Aggrieved by said order dated 05.08.2026, rejecting her application for setting aside ex-parte judgment and decree dated 29.01.2025, appellant has approached this Court by way of present appeal.

Learned counsel submitted that the expression “sufficient cause” as occurring in Order IX Rule 13 CPC is required to be construed liberally and with a justice-oriented approach so as to advance substantial justice between the parties, particularly where the absence is neither mala fide nor intentional. According to learned counsel, present is not a case where appellant had abandoned the proceedings or remained indifferent to the suit; she had entered appearance, filed her written statement and contested the suit through her engaged counsel for several years. Her absence on 19.07.2024, i.e., the date on which learned Trial Court proceeded ex-parte against her, according to learned counsel, was occasioned by the unfortunate demise of her conducting advocate, Shri Dharampal Godara, and was thus neither deliberate nor intentional.

Learned counsel further submitted that the appellant is an aged lady of about 70 years residing in a distant rural area and had thus remained unaware of the demise of her counsel and the consequent developments in the proceedings. According to learned counsel, a litigant who had entrusted the conduct of her case to counsel ought not to be made to suffer for circumstances beyond her control.

Learned counsel submitted that, upon learning of the demise of her counsel and the ex-parte proceedings, appellant promptly engaged another counsel and preferred an application under Order IX Rule 7 CPC on 21.10.2024 seeking recall of order dated 19.07.2024. She was advised that her personal attendance was not required on every date of hearing; however, as the counsel engaged could not appear on the date fixed for filing reply, the same was dismissed for non-prosecution on 28.10.2024.

Learned counsel further submitted that the relevant inquiry under Order IX Rule 13 CPC is whether the defendant was prevented by sufficient cause from appearing when the suit was called on for hearing on the date on which the proceedings were ordered to proceed ex-parte. In the present case, that date was 19.07.2024. Learned Trial Court, according to learned counsel, therefore fell into error in drawing an inference of negligence / lack of diligence against appellant from the subsequent dismissal for non-prosecution of her application under Order IX Rule 7 CPC on 28.10.2024, particularly when said application had not even been adjudicated on merits.

Learned counsel also submitted that appellant had approached the Court without delay after the passing of the ex-parte decree, filing the application under Order IX Rule 13 CPC on 07.02.2025, within nine days of the decree dated 29.01.2025, which shows promptness and continued intention on the part of appellant to contest the suit on merits.

Learned counsel further submitted that ex-parte proceedings caused grave prejudice to appellant, inasmuch as her registered sale deed dated 14.05.2004 was invalidated without plaintiff's testimony being subjected to cross-examination and without the appellant being afforded an opportunity to lead evidence on issues No.3 to 7, the burden whereof lay upon the defendants. It was further submitted that respondent No.1/plaintiff had earlier executed a sworn compromise acknowledging the sale in favour of appellant and receipt of consideration thereunder, and had expressly agreed not to litigate against the appellant. According to learned counsel, solely on account of the appellant having been proceeded against ex-parte, she was deprived of opportunity to confront the plaintiff with said document and place the same on record, thereby causing grave prejudice and resulting in a serious miscarriage of justice.

In support of aforesaid submissions, learned counsel for the appellant relied upon the following judgments of the Hon'ble Supreme Court: -

I. G.P. Srivastava v. R.K. Raizada & Ors., (2000) 3 SCC 54;

II. A. Murugesan v. Smt. Jamuna Rani, (2019) 20 SCC 803;

III. Parimal v. Veena @ Bharti, (2011) 3 SCC 545;

IV. Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd., (2005) 13 SCC 95;

V. Ram Nath Sao v. Gobardhan Sao, (2002) 3 SCC 195;

VI. State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94;

VII. Davinder Pal Sehgal v. Partap Steel Rolling Mills (P) Ltd., (2002) 3 SCC 156; and

VIII. Rafiq & Anr. v. Munshilal & Anr., (1981) 2 SCC 788.

Learned counsel contended that although an application under Order IX Rule 7 CPC was preferred on 21.10.2024 through newly engaged counsel, however, her counsel remained absent even on 28.10.2024, resulting in dismissal of said application for non-prosecution. No steps were thereafter taken either for restoration of said application or for bringing the alleged circumstances of her absence to the notice of learned Trial Court, and appellant remained inactive until the ex-parte judgment and decree came to be passed on 29.01.2025. Such conduct, according to learned counsel, demonstrated lack of diligence on the part of appellant.

It was further submitted that appellant's application did not disclose sufficient particulars regarding the alleged demise of her counsel, including the precise date thereof or the date on which she acquired knowledge of the same. A vague assertion of want of knowledge, according to learned counsel, could not discharge the burden of establishing sufficient cause.

It was further submitted that the plea of illness and incapacity raised by appellant was wholly unsubstantiated by any medical certificate or other material documents. According to learned counsel, a bald assertion of illness without documentary proof cannot constitute "sufficient cause" within the meaning of Order IX Rule 13 CPC.

Learned counsel also submitted that the ex-parte decree had attained finality insofar as the co-defendants/vendors of the appellant were concerned. It was pointed out that the application under Order IX Rule 13 CPC preferred by co-defendant Kaur Singh and others had been dismissed and no challenge thereto had been pursued. Since the appellant claimed title through the very sale transaction which formed the subject matter of the suit and the decree, it was contended that the decree could not be reopened at the instance of the appellant alone.

In support of aforesaid submissions, learned counsel for respondent No.1 relied upon the following judgments of the Hon'ble Supreme Court: -

I. Kanchhu v. Prakash Chand & Ors., (2025) INSC 542;

II. Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993; and

III. Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425.

The controversy at hand concerns the provisions of Order IX Rule 13 which provide for setting aside of ex-parte decree passed against defendants. Order IX Rule 13, insofar as relevant for our present purposes, is reproduced hereinbelow for ready reference:

A bare reading of the provision reveals that an ex-parte decree may be set aside under two distinct circumstances:

Where the summons was not duly served upon the defendant; or

Where, despite due service, defendant was prevented by “sufficient cause” from appearing when the suit was called on for hearing.

In the present case, there is no dispute that appellant had been served with summons, had entered appearance through counsel, and had filed a detailed written statement. The controversy, therefore, falls for consideration under the second limb of the provision, namely, whether the appellant was prevented by sufficient cause from appearing when the suit was called on for hearing.

The expression “sufficient cause” occurring in Order IX Rule 13 CPC has received consideration in several decisions of the Hon'ble Supreme Court. In Parimal (supra), while considering the scope of the expression, the Hon'ble Supreme Court emphasised that the discretion under Order IX Rule 13 has to be exercised bearing in mind the object of doing substantial justice between the parties and that technicalities of law should not come in the way of doing so. The Court observed: -

(emphasis supplied)

In Srei International (supra), where the Special Court had adopted an unduly rigid and technical approach in rejecting an application for setting aside an ex-parte decree concerning recovery, the Hon'ble Supreme Court disapproved of such approach and held:

(emphasis supplied)

In Ram Nath Sao (supra), although the expression “sufficient cause” fell for consideration in the context of an application for setting aside abatement and condonation of delay, the Hon'ble Supreme Court, while observing that the expression must be liberally construed so as to advance substantial justice, enunciated that the approach must be guided by the need to balance the competing rights of the parties - namely, the party in whose favour a valuable right has accrued, and the defaulting party who may suffer irreparable injury if a hyper-technical view is taken. It was held: -

(emphasis supplied)

It is also relevant, in this context, to refer to the observations of the Hon'ble Supreme Court in Rafiq & Anr. (supra), wherein while considering the consequences of the default of an advocate upon the rights of the litigant whom he represents, the Hon'ble Supreme Court noticed the realities of the adversarial system and observed that where a party has selected an advocate, briefed him and done everything within his power to effectively participate in the proceedings, such a litigant cannot ordinarily be made to suffer for the inaction, omission or misdemeanour of his agent. The relevant observations are reproduced hereinbelow: -

(emphasis supplied)

It is also relevant to inquire into the point of time to which the explanation of “sufficient cause” must relate. In G.P. Srivastava (supra), the Hon'ble Supreme Court settled that the statutory inquiry under Order IX Rule 13 CPC must be strictly directed towards the date on which the absence was made the ground for proceeding ex-parte. The Apex Court held:

(emphasis supplied)

This principle was reaffirmed in A. Murugesan (supra), wherein the Hon'ble Supreme Court, relying on G.P. Srivastava (supra), held that the trial court fell into error in taking into consideration the past conduct of the defendant instead of confining its consideration to whether sufficient cause had been established for absence on the date the suit was called on for hearing. The Hon'ble Supreme Court observed: -

Upon a cumulative reading of the authorities discussed hereinabove, the following principles governing the exercise of judicial discretion under Order IX Rule 13 CPC emerge: -

The primary objective underlying the provision is the need to do substantial justice between the parties. Procedural law is handmaid to justice, and an unduly rigid or technical approach towards the same cannot be permitted to defeat the adjudication of rights of parties on merits. Consequently, the expression "sufficient cause" must receive liberal and justice-oriented construction.

The expression “sufficient cause” is elastic and cannot be confined within any strait-jacket formula. The inquiry necessarily depends upon facts and circumstances of each case and must take into account whether defendant had honestly and sincerely intended to appear when the matter was called for hearing. Absence arising from circumstances beyond defendant’s control and where negligence, inaction or want of bona fides cannot be imputed, would constitute the kind of circumstance which may warrant exercise of discretion under the provision.

Under our adversarial system, proceedings are ordinarily entrusted to and conducted by appointed legal counsel, where routine and day-to-day personal attendance of the litigant is neither contemplated nor meaningful. Once a party has engaged an advocate and done everything reasonably within its power, it cannot ordinarily be made to suffer for the default, omission or misdemeanour of the advocate.

The inquiry under the second limb of Order IX Rule 13 CPC is in reference to the date on which the matter was called on for hearing and the absence was made the basis for proceeding ex-parte. If sufficient cause is demonstrated for non-appearance on that date, the inquiry cannot ordinarily be expanded so as to permit the Court to defeat the application by relying upon circumstances / conduct prior to it.

Aforesaid principles must be appreciated within the foundational ethos of our civil jurisprudence that permeate and define the provisions of our Code of Civil Procedure. It is trite that procedural law is intended to facilitate adjudication and not to punish litigants over hyper-technicalities. As observed by the Hon’ble Supreme Court in Sangram Singh (supra): -

The provisions of Order IX Rule 13 underscore the significance attached to adjudication of a suit on merits after affording a proper and effective opportunity of hearing to the parties concerned, thereby giving effect to one of the foundational principles of judicial adjudication – the doctrine of audi alteram partem. At the cost of repetition, it must be emphasized that the provision vests the Court with sufficient discretion to set aside an ex-parte decree even in a situation where the defendant had been duly served, but was prevented by sufficient cause from appearing when the matter was called for hearing.

The significance attached to such opportunity is further reflected in the appellate scheme embodied in Order XLIII Rule 1(d) of the Code. Said provision provides for appeal only against an order rejecting an application for setting aside an ex-parte decree; it does not provide any corresponding statutory appeal against order allowing an application under Order IX Rule 13 CPC. While an order allowing such an application may be challenged before this Court under Article 227 of the Constitution; however, the scope of the supervisory jurisdiction exercised thereunder is well-settled to be narrow and confined to parameters of patent perversity, jurisdictional error, or manifest illegality, whereas in exercise of the appellate jurisdiction under Order XLIII Rule 1(d), the Court is competent to examine the controversy across questions of facts and law.

This asymmetry in the statutory scheme is significant and holds the key to the underlying wisdom of the legislature. It is precisely because law prioritizes adjudication of substantive rights on merits that the Code provides an appellate remedy where such course is refused. An order rejecting an application under Order IX Rule 13 shuts the right of the defendant to contest the suit on merits and thereby permits the rights to be determined by reason of procedural default. Conversely, where the application is allowed, the only consequence is that the matter is restored for determination and adjudication after hearing both sides, which furthers rather than frustrates our ethos of judicial adjudication and explains why the legislature chose not to provide an ordinary statutory appeal against an order allowing such an application. It therefore follows that although procedural finality is important for ensuring orderly adjudication, however, it ought not to be permitted to operate at the cost of foreclosing an adjudication on merits where the statutory requirements for restoration of the opportunity to contest are otherwise satisfied.

This Court finds that it is neither uncommon nor beyond credibility in our social context that an aged litigant residing in a remote rural chak may lack the means or resources to have become aware of the death of her counsel or to keep herself informed of the daily proceedings in the matter, particularly when she rests assured that her engaged advocate is attending to the procedural and legal nitty-gritties of the case. Under such circumstances, in the considered opinion of this Court, the explanation furnished by appellant for her non-representation on 19.07.2024 is genuine and bona fide.

It is borne out from the record that, upon subsequently becoming aware of the demise of her counsel and ex-parte proceedings against her, appellant engaged another counsel and preferred an application under Order IX Rule 7 CPC seeking recall of order dated 19.07.2024. However, on 28.10.2024, when the matter was listed for filing of reply to said application, the newly engaged counsel did not remain present before the Court and learned Trial Court dismissed the application for non-prosecution, without adjudicating the same on merits.

As observed hereinabove, in our adversarial system, it is usual for litigants to engage counsel for due representation of their cause before the Court. Once a litigant has duly entrusted the conduct of the proceedings to counsel, her personal presence on each routine date is neither ordinarily required nor meaningful. In the present case, after the demise of her earlier counsel, appellant had engaged another counsel and had been advised that her day-to-day presence was not necessary; however, despite the same, she remained unrepresented for reasons best known to the counsel. It is not even the case of the respondents that learned counsel had pleaded no instructions from the appellant or that the absence of the counsel was on the instructions of the appellant. In such circumstances, where the absence before the Court is not attributable to any negligence or lack of bona fides on the part of the appellant, it would amount to complete travesty of justice if she is penalized for the default or negligence of her counsel. The principle enunciated by the Hon’ble Supreme Court in Rafiq & Anr. (supra) squarely bears upon this aspect.

It is equally pertinent to observe that learned Trial Court proceeded with unwarranted haste in dealing with the interlocutory application. On 28.10.2024, the application under Order IX Rule 7 CPC was listed merely for filing of reply and not for adjudication on merits. However, learned Trial Court straightway proceeded to dismiss the application for default on account of non-prosecution, rather than adjudicating the same on merits or adjourning the matter.

Learned counsel for the respondents has relied upon the judgment of the Hon’ble Supreme Court in Kanchhu (supra) to contend that the conduct of appellant demonstrates want of diligence. In the considered opinion of this Court, the reliance is misplaced. In Kanchhu (supra), defendants had remained absent even prior to being proceeded ex-parte, had repeatedly sought adjournments without furnishing satisfactory cause and had thereafter failed to furnish a cogent explanation for their continued non-participation. The refusal to interfere therein was thus founded upon the cumulative circumstances reflecting sustained inaction and absence of sufficient explanation.

The factual position in the present case is materially different. The record reflects that appellant remained vigilant towards her rights throughout the proceedings. Upon service of summons, she entered appearance, filed a separate written statement contesting the suit on merits, and actively participated in the litigation over several years. Her non-appearance on 19.07.2024 was caused by the demise of her conducting advocate, and immediately upon learning of the ex-parte proceedings, she took steps to seek recall. This sequence of events is indicative of a litigant who had a sincere intention to contest the lis, and not one who acted with indifference or abandoned her defence.

Learned counsel for the respondents has also relied upon Arjun Singh (supra) and has placed emphasis upon the dismissal of appellant’s application under Order IX Rule 7 CPC. However, Arjun Singh (supra) does not lay down that an adjudication upon an application under Order IX Rule 7 CPC precludes a party from availing the statutory remedy under Order IX Rule 13 CPC. In any event, in the present case, the application under Order IX Rule 7 CPC was dismissed for non-prosecution and there was no adjudication on merits of the cause shown by the appellant for her absence on 19.07.2024. Said order, therefore, cannot be treated as conclusive against the appellant in present proceedings.

A perusal of the impugned order dated 05.08.2026 shows that what principally weighed with the learned Trial Court in rejecting the application under Order IX Rule 13 CPC was the earlier dismissal of the application under Order IX Rule 7 CPC and the fact that the appellant had subsequently acquired knowledge of the ex-parte proceedings. In the considered opinion of this Court, neither circumstance, in the facts of the present case, furnishes a valid ground to decline the relief under Order IX Rule 13 CPC. The dismissal of the application under Order IX Rule 7 CPC was for non-prosecution and not on merits, while the appellant, upon acquiring knowledge of the ex-parte proceedings, had taken steps to seek their recall. Her subsequent failure to remain represented before the learned Trial Court is attributable to her counsel and cannot, in the circumstances noticed above, be treated as evidence of negligence or lack of bona fides on her part.

This Court also cannot lose sight of the fact that, following dismissal of the application under Order IX Rule 7 CPC on 28.10.2024, learned Trial Court proceeded with undue haste to conclude the trial. The suit had remained pending at the stage of plaintiff’s evidence since 2018; yet, after the proceedings were directed to continue ex-parte, the trial was concluded and the ex-parte judgment and decree came to be passed on 29.01.2025. This approach resulted in serious prejudice to the appellant, who had claimed herself to be bona fide purchaser under registered sale deed dated 14.05.2004 and claimed continuous physical possession of the suit land. Plaintiff’s sole testimony as PW-1 remained entirely untested by cross-examination and the documents produced by her were exhibited without challenge. Further, Issues No. 3 to 7, the burden whereof was cast upon the defendants, came to be decided against them solely on the ground that no evidence had been led.

The prejudice is further compounded by the fact that appellant was deprived of the opportunity to place on record the sworn compromise/affidavit allegedly executed by plaintiff-respondent no. 1 herself, wherein the plaintiff is stated to have acknowledged the sale in favour of the appellant, accepted the consideration and agreed not to pursue litigation against her. In these circumstances, denial of appellant’s opportunity to contest has resulted in her substantive rights in immovable property being affected without an effective opportunity of hearing and adjudication on merits.

The objection that the decree has attained finality against co-defendants - Kaur Singh and Ors., and is indivisible is also devoid of merit. Appellant is an independent, subsequent purchaser holding title under a registered sale deed dated 14.05.2004, claiming continuous, actual physical possession of the suit land. She contested the suit by raising independent defences, and therefore, her right to seek setting aside of the ex-parte decree cannot be defeated merely on account of the failure of her vendors to pursue their remedies.

Impugned order dated 05.08.2026 passed by learned Additional District & Sessions Judge, Gharsana, District Sri Ganganagar, in Civil Misc. Case No. 06/2025 is quashed and set aside to the extent it rejects the application filed by appellant under Order IX Rule 13 CPC.

Application filed by appellant under Order IX Rule 13 read with Section 151 CPC is allowed.

Consequently, ex-parte judgment and decree dated 29.01.2025 passed in Civil Suit No. 189/2018 (Godavari v. Deepraj & Ors.) is set aside qua the appellant (defendant No. 7).

Civil Suit No. 189/2018 is restored to its original number and file. Considering that the suit was instituted in the year 2013, learned Trial Court is directed to expedite the trial and dispose of the suit strictly on merits, without granting unnecessary adjournments to either party, preferably within a period of six months from the date of receipt of a certified copy of this order.

Order dated 28.10.2024, whereby the application filed by appellant under Order IX Rule 7 was dismissed for non-prosecution, is also set aside, and learned Trial Court is directed to decide said application on merits.