High Court of Chhattisgarh
Case Details
1 SIDDHANT TAMRAKAR Digitally signed by SIDDHANT TAMRAKAR Date: 2025.09.03 17:45:05 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR WP227 No. 810 of 2024 1. Smt. Saradha Bai D/o Late Shri Sampatlal Aged About 65 Years Caste Aghariya R/o Village Duvanadbari, Tahsil And District- Jharbandh, ( Odissa ). 2. Smt Tara Bai D/o Late Shri Sampatlal Aged About 63 Years R/o Village Chuwariptera, Post Sankara, Tahsil Pithora, District- Mahasamund ( C.G.).
Legal Reasoning
3. Smt. Brij Bai D/o Late Shri Sampatlal Aged About 59 Years R/o Caste Aghariya R/o Village Girna, Tahsil Pithora, District- Mahasamund, ( C.G.). 4. Usat Ram S/o Late Shri Sampat Lal, Aged About 55 Years Caste Aghariya R/o Village Badeloram, Tahsil Pithora, District- Mahasamund, ( C.G.). ... Petitioner(s) versus 1. Brij Bihari S/o Damru Dhar, Aged About 40 Years Caste Kolta R/o Village Bedeloram Post- Parswani, Tahsil Ptithora, District- Mahasamund Chhattisgarh. 2. State Of Chhattisgarh Through- Collector Mahasamund ( C.G.). ... Respondent(s) For Petitioners For Respondent No. 1/plaintiff : Mr. Sudhir Kumar Sahu, Advocate For State : Mr. Virendra Kashyap, Advocate : Mr. Sanjeev Kumar Agrawal, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 02. 09.2025 1. The petitioners have challenged the order dated 15.07.2024 passed in Miscellaneous Civil Appeal No. H 05/2024 by Principal District Judge, Mahasamund, whereby an appeal preferred by the petitioners under Order 43 Rule 1 of CPC has been dismissed. 2. The facts of the present case are that the respondent No. 1/plaintiff field a suit seeking direction to the defendants to execute sale-deed pursuant to 2 agreement dated 10.06.2004 and in alternative refund of consideration Rs. 47,150/-. The Civil Suit was registered as Civil Suit No. 3A/2006, summons were issued to the defendants and despite service, no-one appeared and the learned trial Court vide judgment dated 27.07.2007 decreed the suit. 3. The petitioners herein moved an application under Order 9 Rule 13 of CPC on 24.07.2017 for setting-aside ex-parte decree. They pleaded that an application under Section 152 of CPC was moved by the plaintiff and when summons were served on 22.06.2017, they came to know with regard to ex-parte judgment and decree, and thereafter, they collected certified copy of the judgment and decree on 11.07.2017 and then moved application. 4. The learned trial Court rejected the application holding that despite service of summons, the defendants failed to appear before the learned trial Court and ex-parte judgment and decree was passed way back on 27.07.2007. The learned trial Court vide order dated 10.10.2022 rejected the application moved under Order 9 Rule 13 of CPC on the ground that application has been moved after 10 years and despite service of summons no-one appeared in Civil Suit. It is also observed that summons were served to defendant No. 4/Usat Ram and other defendants. It is also observed that an application under Order 9 Rule 13 of CPC was moved on 24.07.2017 and it was dismissed for want of prosecution on 07.08.2018 and that fact has not been disclosed in the application. The petitioners preferred appeal against order dated 10.10.2022, which was dismissed vide order dated 15.07.2024 against said order this petition has been preferred. 5. Learned counsel for the petitioners would submit that summons were not duly served; the petitioners have good case on merits, and therefore, the learned trial Court ought to have allowed the application moved under Order 9 Rule 13 of CPC. 3 6. On the other hand, learned counsels appearing for respondents would oppose. They would submit that the application under Order 9 Rule 13 of CPC was moved after 10 years without explaining the delay part properly. It is also argued that earlier application under Order 9 Rule 13 of CPC was moved on 24.07.2017, which was dismissed on 07.08.2018 for want of prosecution, and therefore, subsequent application was not maintainable. It is also contended that the petitioners have suppressed this fact before the learned trial Court in the subsequent application. They would contend that this petition deserves to be dismissed. 7. I have heard learned counsel appearing for the parties and perused the documents placed on record. 8. Perusal of the record would show that the summons were duly served on the petitioners in the Civil Suit No. 3A/2006. The petitioners were proceeded ex-parte and ex-parte judgment and decree was passed on 27.07.2007. After 10 years, in the year 2017, one application under Order 9 Rule 13 of CPC was moved by some of the defendants and it was dismissed for want of prosecution vide order dated 07.08.2018 by the learned trial Court. Thereafter, another application was moved along with an application for condonation of delay on 25.09.2018 and said application was rejected by the learned trial Court vide order dated 10.10.2022 on the ground that despite service of summons, no-one participated in the Civil Suit and the delay part has not been explained properly. It is also observed that earlier an application under Order 9 Rule 13 of CPC was moved which was rejected for want of prosecution and the said fact has not been disclosed in the subsequent application. 9. Appeal was was also dismissed by the learned appellate Court vide order dated 15.07.2024 considering the fact that the summons were duly served 4 on the petitioners/defendants; application under Order 9 Rule 13 of CPC was moved after 10 years without explaining delay part properly; earlier application under Order 9 Rule 13 of CPC moved on 24.07.2017 was dismissed for want of prosecution on 07.08.2018 and said order attained finality and instead of moving an application for restoration of said petition, the petitioners preferred another application under Order 9 Rule 13 of CPC. 10. In my opinion the learned Courts below have appreciated & scrutinized the facts properly. In Civil Suit, petitioners were proceeded ex-parte; ex-parte judgment & decree was passed on 27.07.2007; after 10 years application under Order 9 Rule 13 of CPC was moved and it was dismissed for want of prosecution on 07.08.2018; suppressing said fact another application was moved for settling-aside ex-parte decree and delay of 10 years was not properly explained; therefore, this petition fails and hereby dismissed. No cost(s). $iddhant Sd/- (Rakesh Mohan Pandey) Judge