High Court · 2025

Petitioner :- Smt. Kamla Devi U/A 227 Respondent :- Additional District Judge Unnao And 6 Ors. Counsel for Petitioner :- P.V.Chaudhary Counsel for Respondent :- C.S.C.,Adnan Ahmad Hon'ble Pankaj Bhatia,J. Order on Application I.A. No. 27 of 2022 An amendment application has been filed seeking to amend the typographical errors crept in, in the petition. The application is allowed. Let the necessary amendment be carried out during the course of the day. Order on main petition

1. Heard the counsel for the petitioner and Sri Adnan Ahmad who appears for the respondents.

2. The present petition has been filed challenging the order dated 23.05.1990 whereby the ex-parte was passed as well as the order dated 16.02.2006 by which the application for recall of ex-parte decree was rejected and the order dated 31.03.2008 whereby the miscellaneous appeal was dismissed.

3. The facts, in brief, are that the petitioner who is the daughter of the Late Ram Ratan claimed possession over the property by virtue of a Will executed in her favour. The said Will was challenged by the cousin brother of Late Ram Ratan, and the cousin uncle of the petitioner, by filing a Suit being Original Suit No.90 of 1986. In the said suit, it was pleaded that the Will has been obtained by impersonation and thus, was liable to be set aside. The suit ultimately came to be decreed ex-parte, which is on record as Annexure no.6, in which it has been observed that on the basis of the affidavit filed and in the absence of the defendants, there was no reason to disbelieve the version of the plaintiff and the suit came to be decreed. The said decree was passed on 23.05.1990. Subsequently, the petitioner moved an application under Order IX Rule 13 CPC for recall of the said ex-parte decree along with the delay condonation application. The said delay condonation application came to be dismissed on 16.02.2006 against which the Misc. Appeal No.15 of 2006 was preferred which too was dismissed on 31.03.2008, as such, the present petition has been filed challenging the ex- parte decree dated 23.05.1990, the order dated 16.02.2006 whereby the application under section 5 of the Limitation Act was dismissed along with an application under Order IX Rule 13 CPC as well as the order dated 31.03.2008 whereby the Misc. Appeal No.15 of 2006 was dismissed.

4. The submission of the counsel for the petitioner is that the manner in which the ex-parte decree was passed is wholly arbitrary and illegal. He draws my attention to the ex-parte decree, to demonstrate that there was no application of mind. He argues that for passing a decree, it is inherent that there should be an application of mind, which is apparently missing. Attacking the said order dated 16.02.2006, it is argued that the petitioner being an illiterate lady, was not well versed with the legal procedures and, as such, there were errors at the instance of the petitioner, however, merely because there were errors, an ex-parte decree which is on the face of it without application of mind, cannot be permitted to be sustained.

5. The counsel for the respondent, on the other hand, draws my attention to the application filed by the petitioner seeking recall of the ex-parte decree and argues that in all the applications filed, the dates mentioned were clearly erroneous and the casual manner in which, the application under Order IX Rule 13 was moved, should not be permitted and was rightly rejected by the trial court. My attention is also drawn to the fact that even as per the observations made by the trial court, the suit was directed to be proceeded ex-parte and thereafter the matter was fixed for argument and in fact an application was moved at the instance of the petitioner for adjourning the matter on 19.07.1989, and on her application and insistence, the matter was directed to be posted on 30.07.1989. Thus, the contention of the petitioner that the revisional court had passed an interim order in her favour, was incorrect and no reason was depicted for not appearing for almost five years. He also draws my attention to the Section 5 application wherein, day today delay has not been explained. He thus, argues that the casual manner in which, the litigation was contested by the petitioner, does not deserve any indulgence in exercise of power under Article 227 of the Constitution of India.

6. The counsel for the petitioner has placed reliance on the judgment of this court in the case of Khadi Evam Gramodyog Board Lko and others vs. M/s Purvanchal Janta Gram Sewa Sansthan and another; 2014 (32) LCD 2225 and laid emphasis on para 58, which is quoted herein below :

58. The impugned judgement cannot be sustained. Even an ex-parte judgement should satisfy the description of the judgement as laid down in Order 20 Rule 4. The judgement for its sustenance must contain not only the findings on the points but must also contains what evidence consists of and how it does prove the plaintiff's case. A judgement unsupported by reasons is no judgement in the eye of law. It is well settled that reasons are the links between the material on record and the conclusion arrived at by the Court. Mere fact that the defendant absented himself on the date of hearing and the suit proceeded ex-parte did not by itself entitle the plaintiffs to get a decree in their favour. The court was under an obligation to apply its mind to whatever ex-parte evidence or affidavit filed under order 19 of the Code is on the record of the case and the application of mind must be writ large on the face of record. This is possible only if the Court directs itself to whatever material is on record of the case, analysis the same and then comes to any conclusion on the basis of evidentiary value of the ex-parte evidence or affidavit brought on record by the plaintiffs." He further places reliance on para 3 of the judgment in the case of Smt. Suhagwati vs. Vth Additional District Judge; 2004(22 LCD 1538. Further reliance is placed upon the judgment of this court in the Matter U/A 227 No.2992 of 2009 (Satrohan Lal vs. Additional District Judge, Barabanki) decided on 19.02.2025 and laid emphasis on paragraph 4 & 9, which are quoted herein below : "4. The submission of learned counsel for the petitioner is that the petitioner was not aware of the ex parte decree. He argues that the petitioner was living separately with his wife and in terms of the office report, wherein service was deemed to be sufficient, a report of the process server was considered, wherein it was stated that at the place of service, the wife of the petitioner was found. He argues that as the petitioner and his wife were staying separately, the report ought to have been disbelieved. He further argues that the ex parte decree in question is cursory in nature and not even one evidence has been considered as is evident from the ex parte decree, which is on record.

9. The ex parte decree, being falling short of all parameters of known method of decision making, dated 10.04.1973 is also quashed. The matter is remanded for a decision afresh in accordance with law." Reliance is also placed upon the judgment in the case of Ram Raj and others vs. DDC and others; Writ Petition No.508 of 1984 decided on 02.02.1987 and specifically relies on para 6 and 7 which are as under : "6. Thus, it appears that sufficient cause was shown by the petitioners indicating the circumstances under which petitioner who was doing Pairvi in the case could not reach court in time on 9.3.1983. Learned Deputy Director of Consolidation has, thus, erred in rejecting the application for restoration on erroneous ground. In my opinion, the past conduct of the petitioners and previous negligence or want of diligence on their part to prosecute their case could not be made the basis for rejecting the application for restoration moved by the petitioners wherein sufficient cause was shown for non-appearance of petitioner No.22, Ram Jiyawan, who had reached court late due to his sudden illness while coming to court.

7. It is well settled that court's discretion should be exercised in favour of hearing and not to shut out hearing. (See Ramji Das and others Vs. Mohan Singh, 1978 Allh. Rent Cases 396). In The State of West Bengal Vs. The Administrator, Howrah Municipality and others etc. (AIR 1972 SC 749) it has been held that the expression "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party."

7. The counsel for the respondents relies upon the judgment of the Supreme Court in the case of M/s Uttam Rice Mill vs. M/s Ashok Construction Company; SLP (Civil) No.25511 of 2024 decided on 17.03.2025 and lays emphasis on para 17 of the said judgment, which is quoted herein below : "17. A litigant who is not vigilant and prompt towards his cause must not be allowed to claim equity before a Court of law. Accordingly, the appeal is allowed and the impugned order of the High Court is set aside. As such, the orders dated 19.04.2018 and 04.10.2019 passed by the Executing Court in Execution Application No.16-B/2002 dismissing the execution proceedings initiated by the respondent and dismissing the restoration application respectively are restored."

8. Considering the submissions made at the bar and recorded above, although the conduct of the petitioner in the manner in which Section 5 application was filed along with an application under Order IX Rule 13 CPC, prima-facie demonstrates the callous manner in which, the petitioner was conducting the litigation, however, this court cannot ignore the fact that the ex- parte decree is shorn off any relevant consideration of materials placed before the Civil Judge, it is no doubt know that the suit was decided ex-parte, however merely because the suit is proceeding ex-parte does not confer upon the court the power to pass an order/decree without any application of mind.

9. On the perusal of the ex-part decree dated 23.05.1990, it is clear that it is short of any reasoning whatsoever, as such, remanding the matter for deciding the application under Order IX Rule 13 CPC afresh, would be further delaying the proceedings which are pending since the year 1986, as such exercising the power under Article 227, the ex-parte judgment dated 23.05.1990 is set aside. The petitioner shall appear before the Trial Court and the matter shall be decided afresh. On account of the lackadaisical attitude in which the petitioner has contested the proceedings, a cost of Rs.25000/- is imposed which shall be paid by the petitioner to be paid to the respondent. The cost shall be deposited before the Civil Judge within a period of three months from today. In the event of non- payment of cost, the benefit of this order shall come to an end and the writ petition shall be deemed to be dismissed by this court.

10. With these observations, the writ petition stands disposed off. Order Date :- 14.5.2025 VNP/- VISHVANATH PRASAD SHUKLA VISHVANATH PRASAD SHUKLA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

Petitioner :- Smt. Kamla Devi U/A 227 Respondent :- Additional District Judge Unnao And 6 Ors. Counsel for Petitioner :- P.V.Chaudhary Counsel for Respondent :- C.S.C.,Adnan Ahmad Hon'ble Pankaj Bhatia,J. Order on Application I.A. No. 27 of 2022 An amendment application has been filed seeking to amend the typographical errors crept in, in the petition. The application is allowed. Let the necessary amendment be carried out during the course of the day. Order on main petition

1. Heard the counsel for the petitioner and Sri Adnan Ahmad who appears for the respondents.

2. The present petition has been filed challenging the order dated 23.05.1990 whereby the ex-parte was passed as well as the order dated 16.02.2006 by which the application for recall of ex-parte decree was rejected and the order dated 31.03.2008 whereby the miscellaneous appeal was dismissed.

3. The facts, in brief, are that the petitioner who is the daughter of the Late Ram Ratan claimed possession over the property by virtue of a Will executed in her favour. The said Will was challenged by the cousin brother of Late Ram Ratan, and the cousin uncle of the petitioner, by filing a Suit being Original Suit No.90 of 1986. In the said suit, it was pleaded that the Will has been obtained by impersonation and thus, was liable to be set aside. The suit ultimately came to be decreed ex-parte, which is on record as Annexure no.6, in which it has been observed that on the basis of the affidavit filed and in the absence of the defendants, there was no reason to disbelieve the version of the plaintiff and the suit came to be decreed. The said decree was passed on 23.05.1990. Subsequently, the petitioner moved an application under Order IX Rule 13 CPC for recall of the said ex-parte decree along with the delay condonation application. The said delay condonation application came to be dismissed on 16.02.2006 against which the Misc. Appeal No.15 of 2006 was preferred which too was dismissed on 31.03.2008, as such, the present petition has been filed challenging the ex- parte decree dated 23.05.1990, the order dated 16.02.2006 whereby the application under section 5 of the Limitation Act was dismissed along with an application under Order IX Rule 13 CPC as well as the order dated 31.03.2008 whereby the Misc. Appeal No.15 of 2006 was dismissed.

4. The submission of the counsel for the petitioner is that the manner in which the ex-parte decree was passed is wholly arbitrary and illegal. He draws my attention to the ex-parte decree, to demonstrate that there was no application of mind. He argues that for passing a decree, it is inherent that there should be an application of mind, which is apparently missing. Attacking the said order dated 16.02.2006, it is argued that the petitioner being an illiterate lady, was not well versed with the legal procedures and, as such, there were errors at the instance of the petitioner, however, merely because there were errors, an ex-parte decree which is on the face of it without application of mind, cannot be permitted to be sustained.

5. The counsel for the respondent, on the other hand, draws my attention to the application filed by the petitioner seeking recall of the ex-parte decree and argues that in all the applications filed, the dates mentioned were clearly erroneous and the casual manner in which, the application under Order IX Rule 13 was moved, should not be permitted and was rightly rejected by the trial court. My attention is also drawn to the fact that even as per the observations made by the trial court, the suit was directed to be proceeded ex-parte and thereafter the matter was fixed for argument and in fact an application was moved at the instance of the petitioner for adjourning the matter on 19.07.1989, and on her application and insistence, the matter was directed to be posted on 30.07.1989. Thus, the contention of the petitioner that the revisional court had passed an interim order in her favour, was incorrect and no reason was depicted for not appearing for almost five years. He also draws my attention to the Section 5 application wherein, day today delay has not been explained. He thus, argues that the casual manner in which, the litigation was contested by the petitioner, does not deserve any indulgence in exercise of power under Article 227 of the Constitution of India.

6. The counsel for the petitioner has placed reliance on the judgment of this court in the case of Khadi Evam Gramodyog Board Lko and others vs. M/s Purvanchal Janta Gram Sewa Sansthan and another; 2014 (32) LCD 2225 and laid emphasis on para 58, which is quoted herein below :

58. The impugned judgement cannot be sustained. Even an ex-parte judgement should satisfy the description of the judgement as laid down in Order 20 Rule 4. The judgement for its sustenance must contain not only the findings on the points but must also contains what evidence consists of and how it does prove the plaintiff's case. A judgement unsupported by reasons is no judgement in the eye of law. It is well settled that reasons are the links between the material on record and the conclusion arrived at by the Court. Mere fact that the defendant absented himself on the date of hearing and the suit proceeded ex-parte did not by itself entitle the plaintiffs to get a decree in their favour. The court was under an obligation to apply its mind to whatever ex-parte evidence or affidavit filed under order 19 of the Code is on the record of the case and the application of mind must be writ large on the face of record. This is possible only if the Court directs itself to whatever material is on record of the case, analysis the same and then comes to any conclusion on the basis of evidentiary value of the ex-parte evidence or affidavit brought on record by the plaintiffs." He further places reliance on para 3 of the judgment in the case of Smt. Suhagwati vs. Vth Additional District Judge; 2004(22 LCD 1538. Further reliance is placed upon the judgment of this court in the Matter U/A 227 No.2992 of 2009 (Satrohan Lal vs. Additional District Judge, Barabanki) decided on 19.02.2025 and laid emphasis on paragraph 4 & 9, which are quoted herein below : "4. The submission of learned counsel for the petitioner is that the petitioner was not aware of the ex parte decree. He argues that the petitioner was living separately with his wife and in terms of the office report, wherein service was deemed to be sufficient, a report of the process server was considered, wherein it was stated that at the place of service, the wife of the petitioner was found. He argues that as the petitioner and his wife were staying separately, the report ought to have been disbelieved. He further argues that the ex parte decree in question is cursory in nature and not even one evidence has been considered as is evident from the ex parte decree, which is on record.

9. The ex parte decree, being falling short of all parameters of known method of decision making, dated 10.04.1973 is also quashed. The matter is remanded for a decision afresh in accordance with law." Reliance is also placed upon the judgment in the case of Ram Raj and others vs. DDC and others; Writ Petition No.508 of 1984 decided on 02.02.1987 and specifically relies on para 6 and 7 which are as under : "6. Thus, it appears that sufficient cause was shown by the petitioners indicating the circumstances under which petitioner who was doing Pairvi in the case could not reach court in time on 9.3.1983. Learned Deputy Director of Consolidation has, thus, erred in rejecting the application for restoration on erroneous ground. In my opinion, the past conduct of the petitioners and previous negligence or want of diligence on their part to prosecute their case could not be made the basis for rejecting the application for restoration moved by the petitioners wherein sufficient cause was shown for non-appearance of petitioner No.22, Ram Jiyawan, who had reached court late due to his sudden illness while coming to court.

7. It is well settled that court's discretion should be exercised in favour of hearing and not to shut out hearing. (See Ramji Das and others Vs. Mohan Singh, 1978 Allh. Rent Cases 396). In The State of West Bengal Vs. The Administrator, Howrah Municipality and others etc. (AIR 1972 SC 749) it has been held that the expression "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party."

7. The counsel for the respondents relies upon the judgment of the Supreme Court in the case of M/s Uttam Rice Mill vs. M/s Ashok Construction Company; SLP (Civil) No.25511 of 2024 decided on 17.03.2025 and lays emphasis on para 17 of the said judgment, which is quoted herein below : "17. A litigant who is not vigilant and prompt towards his cause must not be allowed to claim equity before a Court of law. Accordingly, the appeal is allowed and the impugned order of the High Court is set aside. As such, the orders dated 19.04.2018 and 04.10.2019 passed by the Executing Court in Execution Application No.16-B/2002 dismissing the execution proceedings initiated by the respondent and dismissing the restoration application respectively are restored."

8. Considering the submissions made at the bar and recorded above, although the conduct of the petitioner in the manner in which Section 5 application was filed along with an application under Order IX Rule 13 CPC, prima-facie demonstrates the callous manner in which, the petitioner was conducting the litigation, however, this court cannot ignore the fact that the ex- parte decree is shorn off any relevant consideration of materials placed before the Civil Judge, it is no doubt know that the suit was decided ex-parte, however merely because the suit is proceeding ex-parte does not confer upon the court the power to pass an order/decree without any application of mind.

9. On the perusal of the ex-part decree dated 23.05.1990, it is clear that it is short of any reasoning whatsoever, as such, remanding the matter for deciding the application under Order IX Rule 13 CPC afresh, would be further delaying the proceedings which are pending since the year 1986, as such exercising the power under Article 227, the ex-parte judgment dated 23.05.1990 is set aside. The petitioner shall appear before the Trial Court and the matter shall be decided afresh. On account of the lackadaisical attitude in which the petitioner has contested the proceedings, a cost of Rs.25000/- is imposed which shall be paid by the petitioner to be paid to the respondent. The cost shall be deposited before the Civil Judge within a period of three months from today. In the event of non- payment of cost, the benefit of this order shall come to an end and the writ petition shall be deemed to be dismissed by this court.

10. With these observations, the writ petition stands disposed off. Order Date :- 14.5.2025 VNP/- VISHVANATH PRASAD SHUKLA VISHVANATH PRASAD SHUKLA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench