Civil Appeal No. 91 of 2011 · High Court · 2025

Judgment

1. Heard Shri Lakshman Singh, learned counsel for the petitioners and Ms. Sunita Dwivedi, learned counsel appearing for the private-respondents No.1 to 3.

2. The petitioners have approached this Court seeking to assail the order dated 24.04.2013 passed by the Additional District Judge, Court No.9, Pratapgarh in Misc. Civil Appeal No.91 of 2011, whereby an appeal preferred by the petitioners under Order XLII Rule 1(d) CPC was dismissed, as a consequence, the order passed by the trial Court dated

17.09.2011, whereby the application of the petitioners under Order IX Rule 13 CPC was dismissed, was affirmed.

3. The brief facts giving rise to the instant petition are being noticed hereinafter:-

4. The predecessor-in-interest of the respondents No.1 to 3, namely Gajendra Prasad had instituted a suit for permanent injunction in the Court of Civil Judge (Junior Division), Sadar, Pratapgarh. The present petitioners

were impleaded as defendants No.3 and 4. The contentions of the plaintiff/predecessor of the respondents No.1 to 3 was that they are in the peaceful possession of the property in dispute and on the eastern side there 2 was a drain which was being utilized for the drainage of the dirty water but the defendants in order to expand their construction were attempting to cover and destory the said drain and in such circumstances, the suit for injunction was filed seeking a decree of permanent injunction.

5. Initially, the suit was contested by the petitioners by filing their written statement, however, thereafter, the matter was set ex-parte on

22.11.2006. Ultimately, the suit filed by the plaintiffs came to be decided by an ex-parte judgment and decree dated 24.10.2008.

6. The petitioners being aggrieved against the ex-parte judgment and decree dated 24.10.2008 moved an application under Order IX Rule 13 CPC which came to be registered as Misc. Case No.65/2008. The grounds raised by the petitioners were:- (i) during pendency of the suit, some of the defendants had died and their legal heirs were not brought on record, hence, the judgment was bad as it was pronounced against dead persons. (ii) the suit proceedings had been transferred from one Court to the other, but no notice was issued either to the defendants or their counsel and for the said reason, the defendants were not aware as to where and how the proceedings were being taken forward, hence, a case of sufficient cause was made out. (iii) the plaintiffs had got the plaint amended, but since the suit had been set ex-parte, no notice of the same was issued, hence, the defendants were prevented from sufficient cause from contesting the proceedings and as soon as they received the information regarding ex-parte judgment and decree dated 24.10.2008, the petitioners had moved an application which was within time and in such circumstances, the Court would have taken a liberal view and the 3 application deserved to be allowed.

7. The said application came to be contested and the original plaintiff filed their written objection, the same was considered by the trial Court, however, the trial Court did not find favour with the contentions of the defendants/petitioners. Accordingly, by means of the order dated

17.09.2011, the application under Order IX Rule 13 CPC was rejected.

8. The petitioners being aggrieved, preferred an appeal in terms of Order 43 Rule 1(d) CPC and the same was registered as Misc. Case No.91/2011 and the first appellate Court also did not find favour with the contentions of the petitioners and dismissed the appeal by means of the order dated 24.04.2013.

9. The petitioners, thereafter, assailed the two orders in the instant petition and primarily the contention is that since the petitioners have a substantial case on merit, the least that should have been done was to have provided an opportunity of hearing to the petitioners. The delay, if any, could have been compensated in terms of costs, however, this aspect of the matter was not taken note of by the two Courts while rejecting the application of the petitioner under Order IX Rule 13 CPC.

10. It is further urged that since there was never any contention raised on behalf of the plaintiffs that the defendants have encroached upon or have raised constructions over the disputed land in question and only after the 4 matter was set ex-parte on 22.11.2006 did the plaintiffs move an application for amendment and thereafter the plaintiffs included a prayer of mandatory injunction seeking to direct the defendants from removing the offending constructions, which had seriously jeopardized the rights of the petitioners.

11. It is urged that this was also an incorrect statement inasmuch as the defendants had purchased the property from their predecessor and they had already raised constructions and the true and correct facts were not brought on record by the plaintiffs while instituting the suit and in such circumstances, it was imperative that at least an opportunity of hearing should have been granted to the petitioners and failing which the petitioners are susceptible to suffer irreparable injury. For the aforesaid reasons, it is urged that the ex-parte orders deserves to be set aside.

12. Ms. Dwivedi, learned counsel appearing for the private-respondents No.1 to 3 while opposing the aforesaid submissions has pointed out that three grounds which were raised by the petitioners in their application under Order IX Rule 13 CPC in itself are contrary to the material on record and this has been noticed by the two Courts while rejecting the said application.

13. It is further urged that insofar as the grounds that the suit was transferred from one Court to other of which notice was not sent to the defendants is concerned, it has been pointed out that the respondents No.1 to 3 had filed a supplementary affidavit dated 28.08.2024 before this Court and along with the said affidavit, the certified copies of the order-sheets were brought on record, which indicated that after transfer, the file was 5 received by the transferee Court and the order-sheets dated 13.08.2008 clearly indicates that the petitioners through counsel was present.

14. It is urged that in this light, it cannot be said by the petitioners that they were not aware of the proceedings. The order-sheet subsequent thereto dated 10.09.2008 also indicates that the counsel for the defendants was present.

15. In the aforesaid circumstances, where the defendants already had notice and was aware of the proceedings, hence, there was no requirement that at each and every step notice should have been issued to the defendants repeatedly.

16. It is further urged that insofar as the non-service of the summons as far as the other defendants are concerned that also does hold water for the reason that it is the case of the defendants that they had purchased the property by means of the sale-deed dated 21.08.2003 and the suit came to be filed thereafter. If any of the defendants had died, at best, it would have been the successors of the aggrieved party, who could take this plea, however, since the defendants were contesting the claim of the plaintiffs on their own merits, hence, they are not permitted to espouse the cause of the other co-defendants. Even otherwise, once the property had been sold, there was no requirement of sending notice to the other defendants and as such the present set of petitioners, who were co-defendants cannot take the benefit of non-service of notice to the other co-defendants, who apparently had lost their rights, since, they had transferred the property even prior to the institution of the suit and on account of non service of summons on the legal heirs of the deceased party did not prejudice the case of the present 6 petitioners.

17. It is, thus, urged that for all the aforesaid reasons, the order impugned do not require any interference and the writ petition deserves to be dismissed.

18. The Court has considered the rival submissions and also perused the material available on record.

19. The facts in between the parties are not disputed inasmuch as the suit was preferred by the plaintiffs wherein the defendants had appeared and filed their written statement. The proceedings were set ex-parte against the contesting defendants/the present petitioners on 22.11.2006.

20. The record would further indicates that one of the co-defendants from whom the petitioners had purchased the property had died. Since, the sale had already taken place prior to the institution of the suit, accordingly, there was no requirement for the legal heirs of the said deceased-defendant to have been compulsorily served. Moreover, there is another reason that the death of the co-defendants is not going the impact the rights of the present petitioners inasmuch as the suit was for the relief of permanent injunction. Necessarily, a relief of permanent injunction is in personam and not in rem. The plaintiffs are dominus litis and it is always open for the said plaintiffs to contest the suit for injunction against any person against whom there is a threat. In this regard, if the defendants, who were the original owner of the property had died and since he had transferred his rights in the premises to the defendants, thus, there could not have any impact on the rights of the present petitioners, unless clear prejudice was demonstrated, which 7 needless to say could not be established.

21. It has also been indicated by the learned counsel for the petitioners that at any point of time the successors of the original defendants who had sold the property to the petitioners never came forward to contest in terms of Order XXII Rule 4 Sub-rule (4), where a party, who has not contested the proceedings or did not file its written statement, then with the leave of the Courts, upon his death, it is not necessary to bring his legal heirs on record.

22. In light of the aforesaid propositions of law, the first submissions of the learned counsel for the petitioners that they were prejudiced because of not issuing of notice to the other defendants does not have any legs to stand and is turned down.

23. The other submission made by the learned counsel for the petitioners regarding no notice being sent to the petitioners or their counsel upon transfer of the suit for one Court to another, this also does not have much weight inasmuch as from the certified copies of the order-sheets, which have been brought on record by the private-respondents No.1 to 3 along with the supplementary affidavit dated 28.08.2024 would indicate that the learned counsel for the petitioners was present before the transferee Court on 13.08.2008 as well as 10.09.2008. Once the presence of their counsel was in the proceedings, then to say that no notice was available or known to the present petitioners also is not substantiated. Consequently, the said submission of the learned counsel for the petitioners also fails.

24. Lastly, the submission that the suit came to be amended after the 8 proceedings were set ex-parte which has impacted the rights of the plaintiffs-petitioners is concerned, if this is examined, it would reveal that the proceedings were set ex-parte on 22.11.2006. The plaint came to the amended in the year 2008 referring to a cause of action which accrued in

2006. Once the proceedings had been taken forward ex-parte, it was either the duty of the petitioners to have moved an appropriate application under Order IX Rule 7 CPC to get the ex-parte order dated 22.11.2006 recalled.

25. Having skipped this remedy, the effect would be that the said order dated 22.11.2006 merged with the ex-parte judgment and decree passed by the trial Court on 24.10.2008. Thereafter, the petitioners had a remedy of Order IX Rule 13 CPC and in furtherance thereof, an application under Order IX Rule 13 CPC was moved by the petitioners on 04.11.2008 i.e. within two weeks of the passing of the ex-parte judgment and decree dated

24.10.2008.

26. In the aforesaid circumstances, where the petitioners had approached the Court without much delay inasmuch as the said ex-parte decree came to the knowledge of the petitioners and the said decree on account of the amendment made in the plaint had the impact of raising a cloud over the constructions made by the defendants which was already pleaded in the written statement filed on 23.05.2006, apparently was a contestable plea. However, as per the amended plaint, it was indicated by the plaintiffs that the offending construction had been raised only during pendency of the suit in the year 2006, which shall be evident from the copy of the plaint which is at running page 63 of the paper-book and in Paragraph-10 it states that the cause for removing the offending constructions accrued on 21.01.2006. 9

27. In this view of the matter, where certain conflicting claims are to be adjudicated and in the aforesaid circumstances and the averments in the application under Order IX Rule 13 CPC, this Court does not find that the conduct of the defendants was so negligent that it did not deserve an opportunity of hearing. The suit had been contested on behalf of the defendants by the petitioner No.1 Usha Devi and it is stated that she was dependent on her counsel as her husband was in service outside the District of Pratapgarh.

28. It is now well settled that where technicalities are pitted against substantive justice, it is substantive justice which should be preferred as the Court lean in favour of doing substantive justice rather than to foreclose the rights of the parties by adopting a hyper-technical view.

29. It is not disputed that the application under Order IX Rule 13 CPC came to be filed within two weeks of passing of the ex-parte judgment. It is clearly mentioned in the application under Order IX Rule 13 CPC that the petitioner No.1 Usha Devi was dependent on her counsel in absence of her husband and she had no other means of knowing about the proceedings except what was told to her by her counsel. The Court is required to see whether the petitioners were prevented by sufficient cause for appearing in the case which led to the ex-parte decree

30. The word 'sufficient cause' came to be considered by the Apex Court in Ram Nath Sao alias Ram Nath Sahu & Ors. v. Gobardhan Sao & Ors., (2002) 3 SCC 195 and it was held as under:- "12. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the 10 Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."

31. The Apex Court in Esha Bhattacharjee v. Managing Committee of Raghnathpur Nafar Academy & Ors., (2013) 12 SCC 649 has held as under:- "21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 11

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."

32. Very recently, the Apex Court in Kumari Sahu v. Bhubanananda Sahu & Ors., MANU/SCOR/15950/2025 has held as under:- 12 "10. We are aware of the caution that needs to be exercised in matters relating to condonation of delay of longer durations. However, it must be noted that balancing of scales of justice becomes imperative when it comes to such matters, especially given the socio-economic background of a large number of India's population who approach these doors of justice as litigants.

11. We find it relevant to produce here a paragraph from Rafiq and Another v. Munshilal and Another (1981) 2 SCC 788, a case which had a very similar factual matrix regarding delay due to Counsel's fault, the following was observed: "3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original 13 number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs 200 should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr A.K. Sanghi." (Emphasis is mine)

12. Even though the above-quoted case law is from the year 1981, we cannot deny the fact that the ground reality of a considerable proportion of litigants being completely dependent on their counsel remains the same, especially in regions with lower economic and educational prowess."

33. Thus, the principles that can be culled out from the aforesaid decisions and if applied to the instant case would reveal that the word 'sufficient cause' must be construed liberally and the explanation furnished must be accepted unless gross negligence can be imputed to the party seeking indulgence of the Court.

34. In the instant case, the reliance and dependence on the counsel is not disputed. Husband of Usha Devi being away on account of work is not disputed. It is also not disputed that Usha Devi and her husband did not have a dilatory attitude while contesting the proceedings and apart from what they were told or advised by their counsel, they had no other means of gaining knowledge coupled with the fact that the application under Order IX Rule 13 CPC was moved within time. Hence, this Court is of the view that an opportunity should have been granted to the petitioners rather than condemning them unheard.

35. The record also shows that a Coordinate Bench of this Court vide order dated 09.09.2013 had protected the rights and the execution of the ex- parte decree has not been done. The delay in the proceedings can be 14 mitigated by compensating the private-respondents by awarding costs in light of the principles laid down by the Apex Court in Revajeetu Builders and Developers v. Narayanaswamy & Sons and others, (2009) 10 SCC 84 and Vinod Seth v. Devinder Bajaj and another, (2010) 8 SCC 1.

36. In the aforesaid circumstances, this Court is of the view that ends of justice can be met by allowing the writ petition, setting aside the ex-parte judgment and decree dated 24.10.2008 on payment of costs of Rs.30,000/- [Rs.20,000/- shall be payable to the plaintiffs and Rs.10,000/- shall be deposited with the District Legal Service Authority, Pratapgarh] within a period of two weeks from today. The proceedings of O.S. No.1486/2003 shall stand restored to its original number where the parties shall appear before the trial Court on 16.04.2025. The suit shall proceed from the stage the plaintiffs had moved an application for amendment. The defendants shall be given reasonable opportunity to contest the suit including by filing their objections to the amendment application. The parties shall be free to lead fresh evidence. The parties are directed to cooperate in the proceedings of O.S. No.1486/2003. Any party choosing to misuse the liberty shall be saddled with costs to be enhanced progressively. The trial Court shall endeavour to decided the O.S. No.1486/2003 expeditiously preferably within a period of six months from the date parties appear before the trial Court. It is made clear that if the costs, as directed by this Court, are not paid then the proceedings shall not be revived.

37. With the aforesaid observations, the writ petition is allowed. Order Date :- 26.03.2025 Rakesh/-

were impleaded as defendants No.3 and 4. The contentions of the plaintiff/predecessor of the respondents No.1 to 3 was that they are in the peaceful possession of the property in dispute and on the eastern side there 2 was a drain which was being utilized for the drainage of the dirty water but the defendants in order to expand their construction were attempting to cover and destory the said drain and in such circumstances, the suit for injunction was filed seeking a decree of permanent injunction.

5. Initially, the suit was contested by the petitioners by filing their written statement, however, thereafter, the matter was set ex-parte on

22.11.2006. Ultimately, the suit filed by the plaintiffs came to be decided by an ex-parte judgment and decree dated 24.10.2008.

6. The petitioners being aggrieved against the ex-parte judgment and decree dated 24.10.2008 moved an application under Order IX Rule 13 CPC which came to be registered as Misc. Case No.65/2008. The grounds raised by the petitioners were:- (i) during pendency of the suit, some of the defendants had died and their legal heirs were not brought on record, hence, the judgment was bad as it was pronounced against dead persons. (ii) the suit proceedings had been transferred from one Court to the other, but no notice was issued either to the defendants or their counsel and for the said reason, the defendants were not aware as to where and how the proceedings were being taken forward, hence, a case of sufficient cause was made out. (iii) the plaintiffs had got the plaint amended, but since the suit had been set ex-parte, no notice of the same was issued, hence, the defendants were prevented from sufficient cause from contesting the proceedings and as soon as they received the information regarding ex-parte judgment and decree dated 24.10.2008, the petitioners had moved an application which was within time and in such circumstances, the Court would have taken a liberal view and the 3 application deserved to be allowed.

7. The said application came to be contested and the original plaintiff filed their written objection, the same was considered by the trial Court, however, the trial Court did not find favour with the contentions of the defendants/petitioners. Accordingly, by means of the order dated

17.09.2011, the application under Order IX Rule 13 CPC was rejected.

8. The petitioners being aggrieved, preferred an appeal in terms of Order 43 Rule 1(d) CPC and the same was registered as Misc. Case No.91/2011 and the first appellate Court also did not find favour with the contentions of the petitioners and dismissed the appeal by means of the order dated 24.04.2013.

9. The petitioners, thereafter, assailed the two orders in the instant petition and primarily the contention is that since the petitioners have a substantial case on merit, the least that should have been done was to have provided an opportunity of hearing to the petitioners. The delay, if any, could have been compensated in terms of costs, however, this aspect of the matter was not taken note of by the two Courts while rejecting the application of the petitioner under Order IX Rule 13 CPC.

10. It is further urged that since there was never any contention raised on behalf of the plaintiffs that the defendants have encroached upon or have raised constructions over the disputed land in question and only after the 4 matter was set ex-parte on 22.11.2006 did the plaintiffs move an application for amendment and thereafter the plaintiffs included a prayer of mandatory injunction seeking to direct the defendants from removing the offending constructions, which had seriously jeopardized the rights of the petitioners.

11. It is urged that this was also an incorrect statement inasmuch as the defendants had purchased the property from their predecessor and they had already raised constructions and the true and correct facts were not brought on record by the plaintiffs while instituting the suit and in such circumstances, it was imperative that at least an opportunity of hearing should have been granted to the petitioners and failing which the petitioners are susceptible to suffer irreparable injury. For the aforesaid reasons, it is urged that the ex-parte orders deserves to be set aside.

12. Ms. Dwivedi, learned counsel appearing for the private-respondents No.1 to 3 while opposing the aforesaid submissions has pointed out that three grounds which were raised by the petitioners in their application under Order IX Rule 13 CPC in itself are contrary to the material on record and this has been noticed by the two Courts while rejecting the said application.

13. It is further urged that insofar as the grounds that the suit was transferred from one Court to other of which notice was not sent to the defendants is concerned, it has been pointed out that the respondents No.1 to 3 had filed a supplementary affidavit dated 28.08.2024 before this Court and along with the said affidavit, the certified copies of the order-sheets were brought on record, which indicated that after transfer, the file was 5 received by the transferee Court and the order-sheets dated 13.08.2008 clearly indicates that the petitioners through counsel was present.

14. It is urged that in this light, it cannot be said by the petitioners that they were not aware of the proceedings. The order-sheet subsequent thereto dated 10.09.2008 also indicates that the counsel for the defendants was present.

15. In the aforesaid circumstances, where the defendants already had notice and was aware of the proceedings, hence, there was no requirement that at each and every step notice should have been issued to the defendants repeatedly.

16. It is further urged that insofar as the non-service of the summons as far as the other defendants are concerned that also does hold water for the reason that it is the case of the defendants that they had purchased the property by means of the sale-deed dated 21.08.2003 and the suit came to be filed thereafter. If any of the defendants had died, at best, it would have been the successors of the aggrieved party, who could take this plea, however, since the defendants were contesting the claim of the plaintiffs on their own merits, hence, they are not permitted to espouse the cause of the other co-defendants. Even otherwise, once the property had been sold, there was no requirement of sending notice to the other defendants and as such the present set of petitioners, who were co-defendants cannot take the benefit of non-service of notice to the other co-defendants, who apparently had lost their rights, since, they had transferred the property even prior to the institution of the suit and on account of non service of summons on the legal heirs of the deceased party did not prejudice the case of the present 6 petitioners.

17. It is, thus, urged that for all the aforesaid reasons, the order impugned do not require any interference and the writ petition deserves to be dismissed.

18. The Court has considered the rival submissions and also perused the material available on record.

19. The facts in between the parties are not disputed inasmuch as the suit was preferred by the plaintiffs wherein the defendants had appeared and filed their written statement. The proceedings were set ex-parte against the contesting defendants/the present petitioners on 22.11.2006.

20. The record would further indicates that one of the co-defendants from whom the petitioners had purchased the property had died. Since, the sale had already taken place prior to the institution of the suit, accordingly, there was no requirement for the legal heirs of the said deceased-defendant to have been compulsorily served. Moreover, there is another reason that the death of the co-defendants is not going the impact the rights of the present petitioners inasmuch as the suit was for the relief of permanent injunction. Necessarily, a relief of permanent injunction is in personam and not in rem. The plaintiffs are dominus litis and it is always open for the said plaintiffs to contest the suit for injunction against any person against whom there is a threat. In this regard, if the defendants, who were the original owner of the property had died and since he had transferred his rights in the premises to the defendants, thus, there could not have any impact on the rights of the present petitioners, unless clear prejudice was demonstrated, which 7 needless to say could not be established.

21. It has also been indicated by the learned counsel for the petitioners that at any point of time the successors of the original defendants who had sold the property to the petitioners never came forward to contest in terms of Order XXII Rule 4 Sub-rule (4), where a party, who has not contested the proceedings or did not file its written statement, then with the leave of the Courts, upon his death, it is not necessary to bring his legal heirs on record.

22. In light of the aforesaid propositions of law, the first submissions of the learned counsel for the petitioners that they were prejudiced because of not issuing of notice to the other defendants does not have any legs to stand and is turned down.

23. The other submission made by the learned counsel for the petitioners regarding no notice being sent to the petitioners or their counsel upon transfer of the suit for one Court to another, this also does not have much weight inasmuch as from the certified copies of the order-sheets, which have been brought on record by the private-respondents No.1 to 3 along with the supplementary affidavit dated 28.08.2024 would indicate that the learned counsel for the petitioners was present before the transferee Court on 13.08.2008 as well as 10.09.2008. Once the presence of their counsel was in the proceedings, then to say that no notice was available or known to the present petitioners also is not substantiated. Consequently, the said submission of the learned counsel for the petitioners also fails.

24. Lastly, the submission that the suit came to be amended after the 8 proceedings were set ex-parte which has impacted the rights of the plaintiffs-petitioners is concerned, if this is examined, it would reveal that the proceedings were set ex-parte on 22.11.2006. The plaint came to the amended in the year 2008 referring to a cause of action which accrued in

2006. Once the proceedings had been taken forward ex-parte, it was either the duty of the petitioners to have moved an appropriate application under Order IX Rule 7 CPC to get the ex-parte order dated 22.11.2006 recalled.

25. Having skipped this remedy, the effect would be that the said order dated 22.11.2006 merged with the ex-parte judgment and decree passed by the trial Court on 24.10.2008. Thereafter, the petitioners had a remedy of Order IX Rule 13 CPC and in furtherance thereof, an application under Order IX Rule 13 CPC was moved by the petitioners on 04.11.2008 i.e. within two weeks of the passing of the ex-parte judgment and decree dated

24.10.2008.

26. In the aforesaid circumstances, where the petitioners had approached the Court without much delay inasmuch as the said ex-parte decree came to the knowledge of the petitioners and the said decree on account of the amendment made in the plaint had the impact of raising a cloud over the constructions made by the defendants which was already pleaded in the written statement filed on 23.05.2006, apparently was a contestable plea. However, as per the amended plaint, it was indicated by the plaintiffs that the offending construction had been raised only during pendency of the suit in the year 2006, which shall be evident from the copy of the plaint which is at running page 63 of the paper-book and in Paragraph-10 it states that the cause for removing the offending constructions accrued on 21.01.2006. 9

27. In this view of the matter, where certain conflicting claims are to be adjudicated and in the aforesaid circumstances and the averments in the application under Order IX Rule 13 CPC, this Court does not find that the conduct of the defendants was so negligent that it did not deserve an opportunity of hearing. The suit had been contested on behalf of the defendants by the petitioner No.1 Usha Devi and it is stated that she was dependent on her counsel as her husband was in service outside the District of Pratapgarh.

28. It is now well settled that where technicalities are pitted against substantive justice, it is substantive justice which should be preferred as the Court lean in favour of doing substantive justice rather than to foreclose the rights of the parties by adopting a hyper-technical view.

29. It is not disputed that the application under Order IX Rule 13 CPC came to be filed within two weeks of passing of the ex-parte judgment. It is clearly mentioned in the application under Order IX Rule 13 CPC that the petitioner No.1 Usha Devi was dependent on her counsel in absence of her husband and she had no other means of knowing about the proceedings except what was told to her by her counsel. The Court is required to see whether the petitioners were prevented by sufficient cause for appearing in the case which led to the ex-parte decree

30. The word 'sufficient cause' came to be considered by the Apex Court in Ram Nath Sao alias Ram Nath Sahu & Ors. v. Gobardhan Sao & Ors., (2002) 3 SCC 195 and it was held as under:- "12. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the 10 Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."

31. The Apex Court in Esha Bhattacharjee v. Managing Committee of Raghnathpur Nafar Academy & Ors., (2013) 12 SCC 649 has held as under:- "21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 11

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."

32. Very recently, the Apex Court in Kumari Sahu v. Bhubanananda Sahu & Ors., MANU/SCOR/15950/2025 has held as under:- 12 "10. We are aware of the caution that needs to be exercised in matters relating to condonation of delay of longer durations. However, it must be noted that balancing of scales of justice becomes imperative when it comes to such matters, especially given the socio-economic background of a large number of India's population who approach these doors of justice as litigants.

11. We find it relevant to produce here a paragraph from Rafiq and Another v. Munshilal and Another (1981) 2 SCC 788, a case which had a very similar factual matrix regarding delay due to Counsel's fault, the following was observed: "3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original 13 number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs 200 should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr A.K. Sanghi." (Emphasis is mine)

12. Even though the above-quoted case law is from the year 1981, we cannot deny the fact that the ground reality of a considerable proportion of litigants being completely dependent on their counsel remains the same, especially in regions with lower economic and educational prowess."

33. Thus, the principles that can be culled out from the aforesaid decisions and if applied to the instant case would reveal that the word 'sufficient cause' must be construed liberally and the explanation furnished must be accepted unless gross negligence can be imputed to the party seeking indulgence of the Court.

34. In the instant case, the reliance and dependence on the counsel is not disputed. Husband of Usha Devi being away on account of work is not disputed. It is also not disputed that Usha Devi and her husband did not have a dilatory attitude while contesting the proceedings and apart from what they were told or advised by their counsel, they had no other means of gaining knowledge coupled with the fact that the application under Order IX Rule 13 CPC was moved within time. Hence, this Court is of the view that an opportunity should have been granted to the petitioners rather than condemning them unheard.

35. The record also shows that a Coordinate Bench of this Court vide order dated 09.09.2013 had protected the rights and the execution of the ex- parte decree has not been done. The delay in the proceedings can be 14 mitigated by compensating the private-respondents by awarding costs in light of the principles laid down by the Apex Court in Revajeetu Builders and Developers v. Narayanaswamy & Sons and others, (2009) 10 SCC 84 and Vinod Seth v. Devinder Bajaj and another, (2010) 8 SCC 1.

36. In the aforesaid circumstances, this Court is of the view that ends of justice can be met by allowing the writ petition, setting aside the ex-parte judgment and decree dated 24.10.2008 on payment of costs of Rs.30,000/- [Rs.20,000/- shall be payable to the plaintiffs and Rs.10,000/- shall be deposited with the District Legal Service Authority, Pratapgarh] within a period of two weeks from today. The proceedings of O.S. No.1486/2003 shall stand restored to its original number where the parties shall appear before the trial Court on 16.04.2025. The suit shall proceed from the stage the plaintiffs had moved an application for amendment. The defendants shall be given reasonable opportunity to contest the suit including by filing their objections to the amendment application. The parties shall be free to lead fresh evidence. The parties are directed to cooperate in the proceedings of O.S. No.1486/2003. Any party choosing to misuse the liberty shall be saddled with costs to be enhanced progressively. The trial Court shall endeavour to decided the O.S. No.1486/2003 expeditiously preferably within a period of six months from the date parties appear before the trial Court. It is made clear that if the costs, as directed by this Court, are not paid then the proceedings shall not be revived.

37. With the aforesaid observations, the writ petition is allowed. Order Date :- 26.03.2025 Rakesh/-