Tarsem Lal and Ors. vs Learned Additional District Judge, Kathua and Ors.

Through the medium of the present petition filed under Article 227 of the Constitution of India, the petitioners have sought the following reliefs:

Learned counsel for the petitioners submits that the petitioners are the legal representatives of Late Shri Chano alias Chaino, son of Labhu, resident of Ward No. 10, Kathua. It is submitted that the petitioners belong to a humble rural background, petitioner No. 1 is serving as a Class-IV Government employee, petitioner No. 2 is a daily wage labourer and petitioner No. 3 is a widow. It is further submitted that one Smt. Samitro Devi, who had been impleaded as one of the defendants in the original suit, expired on 20.02.2019 and, therefore, has not been arrayed as a petitioner in the present proceedings. Respondent No. 3 is the original plaintiff and decree-holder under the ex parte decree.

Learned counsel for the petitioners submits that respondent No. 3 instituted a suit for permanent prohibitory injunction before the learned Munsiff, Kathua against Late Shri Chano, predecessor-in-interest of the petitioners, seeking restraint against his alleged interference with land measuring 5 marlas comprising Khasra No. 331 situated at Taraf Manjli, Tehsil Kathua, on the strength of an unregistered Agreement to Sell dated 22.02.1995. Learned counsel contends that Late Shri Chano contested the suit by filing a written statement specifically denying the respondent's possession over the suit land and further pleaded that the alleged Agreement to Sell was void and unenforceable, having been executed in violation of the provisions of the Jammu and Kashmir Agrarian Reforms Act, 1976, inasmuch as no permission had been obtained from the competent revenue authority. It is further submitted that Late Shri Chano categorically denied having received any sale consideration and asserted that he continued to remain in cultivating possession of the suit land.

Learned counsel has further submitted that during the pendency of the suit, Late Shri Chano expired and the present petitioners were brought on record as his legal representatives vide order dated 24.07.1998. Thereafter, they caused appearance before the learned Trial Court through Shri M.G. Puri, Advocate, who filed a Vakalatnama on their behalf. Learned counsel submits that after initially appearing, the said counsel stopped appearing before the Trial Court without informing the petitioners.

It is contended that the petitioners, being illiterate villagers, bonafidely believed that their counsel was attending the proceedings and had been advised that their personal presence before the Court was not required on every date of hearing. Consequently, owing to the continued absence of their counsel, the petitioners were proceeded against ex parte vide order dated 11.10.2004 and the suit ultimately came to be decreed ex parte on 31.01.2006 solely on the basis of the unrebutted evidence led by respondent No. 3.

Learned counsel further submits that the petitioners acquired knowledge of the ex parte judgment and decree only on 01.04.2006, when Respondent No. 3 started asserting that a decree had been passed in his favour. Immediately thereafter, the petitioners applied for a certified copy of the judgment, which was supplied on 04.04.2006, and thereafter instituted an application under Order IX Rule 13 of the Civil Procedure Code along with an application under Section 5 of the Limitation Act. According to learned counsel, the application was filed within thirty days from the date of knowledge of the decree and, therefore, was well within the prescribed period of limitation.

Learned counsel submits that the learned Munsiff, Kathua, by a common order dated 10.02.2011, dismissed both the applications by primarily relying upon an isolated statement allegedly made by petitioner No. 2 during his cross-examination recorded in the year 2009, wherein he appeared to deny the engagement of Shri M.G. Puri, Advocate. Learned counsel contends that the said statement was made by an illiterate villager more than a decade after the filing of the Vakalatnama and was clearly the result of confusion and lapse of time. It is argued that despite the judicial record itself demonstrating that Shri M.G. Puri, Advocate, had entered appearance on behalf of the petitioners, the learned Trial Court erroneously drew an adverse inference and dismissed the applications.

The further case of the petitioners is that they have challenged the aforesaid order by preferring a Miscellaneous Appeal before the learned District Judge, Kathua, which came to be registered as File No. 117/2013. It is submitted that although the appeal remained pending for nearly fifteen years for reasons wholly beyond the control of the petitioners, the same ultimately came to be dismissed by the learned Additional District Judge, Kathua vide the impugned judgment dated 11.12.2025, affirming the order passed by the learned Trial Court.

It has also been submitted that immediately after the pronouncement of the impugned appellate judgment, the petitioners applied for its certified copy and, after obtaining the same, arranged the necessary resources to engage counsel at Jammu for filing the present petition. It is contended that no period of limitation is prescribed for invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India and that the petition has been instituted without any undue delay. Learned counsel also submits that the petitioners continue to remain in physical possession of the suit land and that, even according to the respondent's own evidence, any attempt to take possession was made only after the passing of the ex parte decree.

Learned counsel lastly submits that the present petition is the only efficacious remedy available to the petitioners. It is contended that the order dated 10.02.2011 rejecting the application under Order IX Rule 13 of the Civil Procedure Code was appealable under Order XLIII Rule 1(d) of the Civil Procedure Code and the petitioners duly availed of the said statutory remedy. Learned counsel further submits that no further appeal lies against the appellate judgment dated 11.12.2025 in view of the express bar contained in Section 104(2) of the Civil Procedure Code, nor is a second appeal maintainable under Section 100 of the Civil Procedure Code, the impugned appellate order not being a decree within the meaning of Section 2(2) of the Civil Procedure Code. It is, therefore, contended that the petitioners have rightly invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

Heard learned counsel for the petitioners and perused the record.

The principal contention advanced on behalf of the petitioners is that after the demise of their predecessor-in-interest, namely, Late Shri Chano, they were duly substituted as his legal representatives and had engaged Shri M.G. Puri, Advocate, to represent them before the learned trial Court. It is their case that although the said counsel had filed his Vakalatnama on their behalf, he subsequently stopped appearing before the learned trial Court without informing the petitioners. Accordingly, the petitioners, who remained under the bona fide impression that their case was being duly prosecuted, were proceeded against ex parte vide order dated 11.10.2004, culminating in the passing of the ex parte judgment and decree dated 31.01.2006.

It is further contended that the petitioners, being illiterate villagers, bona fide believed that their counsel was prosecuting the matter and that their personal appearance before the Court was not required on every date of hearing. According to the petitioners, they acquired knowledge of the ex parte decree only on 01.04.2006 and, immediately thereafter, instituted an application under Order IX Rule 13 of the Civil Procedure Code along with an application under Section 5 of the Limitation Act. It has also been urged that the Courts below adopted an unduly technical approach and failed to apply the settled principle that a litigant should not ordinarily suffer for the negligence of his counsel.

This Court has carefully gone through the impugned judgment dated 11.12.2025 passed by the learned Additional District Judge, Kathua, as also the order dated 10.02.2011 passed by the learned Munsiff, Kathua. Upon such consideration, this Court finds itself in agreement with the conclusions concurrently recorded by both the Courts below.

A perusal of the impugned appellate judgment reveals that the learned Additional District Judge independently examined the pleadings, the evidence led by the parties and the record of the Trial Court before affirming the order passed by the learned Munsiff. The learned Appellate Court has noticed that although the petitioners pleaded that they had engaged Shri M.G. Puri, Advocate, who had advised them that their presence was not required on every date of hearing, the stand taken by the petitioners in evidence was found to be wholly inconsistent with the case pleaded by them.

The learned Appellate Court noticed that Petitioner No. 2, in his statement, denied having engaged Shri M.G. Puri, Advocate, and categorically stated that neither he nor the other petitioners had ever appointed Shri M.G. Puri as their counsel. The learned Appellate Court, therefore, found that the said stand was wholly inconsistent with the case set up by the petitioners that they had engaged Shri M.G. Puri, Advocate, to represent them before the learned Trial Court and that, on account of his subsequent non-appearance, they were proceeded against ex parte.

The learned Appellate Court further took note of the trial Court record, which showed that after the death of the original defendant, the petitioners themselves had moved an application under Order XXII of the Code of Civil Procedure for being brought on record as legal representatives and thereafter appeared before the learned Trial Court through counsel. The orders dated 24.07.1998, 08.01.1999, 10.03.1999 and 19.03.1999 further establish that the petitioners had participated in the proceedings after their substitution. In these circumstances, the concurrent finding recorded by the Courts below that the petitioners failed to substantiate the grounds pleaded in support of their application under Order IX Rule 13 of the Civil Procedure Code cannot be said to be either perverse or unsupported by the record.

The learned Appellate Court has also dealt with the petitioners' plea regarding limitation and the alleged date of knowledge of the ex parte decree. Having appreciated the pleadings as well as the evidence led by the parties, it concluded that the petitioners had failed to establish the factual foundation necessary either for condonation of delay or for setting aside the ex parte decree. These findings are essentially findings of fact recorded upon appreciation of evidence and do not disclose any manifest perversity or jurisdictional error warranting interference in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

Since the instant petition has been preferred under Article 227 of the Constitution of India, the scope of interference by this Court is confined to examining whether the Courts below have acted without jurisdiction, committed any patent perversity or occasioned manifest miscarriage of justice. It is well settled that the supervisory jurisdiction under Article 227 is neither appellate nor intended to permit re-appreciation of evidence.

The scope and ambit of the supervisory jurisdiction of this Court under Article 227 of the Constitution is no longer res integra. The Hon'ble Supreme Court in M/s Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181, while explaining the limits of the High Court's supervisory jurisdiction under Article 227 of the Constitution, observed as under:

Tested on the touchstone of the aforesaid principles, this Court finds that the present case does not disclose any jurisdictional error, patent perversity or manifest miscarriage of justice warranting interference in exercise of supervisory jurisdiction under Article 227 of the Constitution. Both the learned Trial Court and the learned Appellate Court have examined the pleadings and appreciated the evidence on record before returning concurrent findings that the petitioners failed to establish sufficient cause for their non-appearance and also failed to substantiate the grounds pleaded in support of their applications under Order IX Rule 13 of the Civil Procedure Code. The findings so recorded are founded upon due appreciation of the evidence on record and cannot be said to suffer from any perversity, patent illegality or jurisdictional error so as to warrant interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution.

In view of the foregoing discussion, this Court finds no illegality, infirmity, jurisdictional error or perversity in the impugned order dated 11.12.2025 passed by the learned Additional District Judge, Kathua, the order dated 10.02.2011 passed by the learned Munsiff, Kathua, or the ex parte judgment and decree dated 31.01.2006 warranting interference in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

The present petition, being devoid of merit, is accordingly dismissed along with all connected applications, if any.