Gujarat High Court
Somabhai Dahyabhai Thakore vs Divyarajsinh Virbhadrasinh Solanki on 8 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 21 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 21 of 2024
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SOMABHAI DAHYABHAI THAKORE & ORS.
Versus
DIVYARAJSINH VIRBHADRASINH SOLANKI & ANR.
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Appearance:
MR VAIBHAV N SHETH(5337) for the Appellant(s) No.
1,2,2.1,2.2,2.3,2.4,2.5,2.6,2.7,2.8,3
MR RASESH H PARIKH(3862) for the Respondent(s) No. 2
MR RUTVIJ S OZA(5594) for the Respondent(s) No. 1
MR.HEMANG H PARIKH(2628) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 08/07/2025
ORAL ORDER
1. Heard learned advocate Mr. Vaibhav N. Sheth for the
appellants and learned advocate Mr. Rutvij Oza for opponent
No.1, with learned advocate Mr. Hemang H. Parikh for
opponent No. 2.
2. The present Appeal from Order is filed under Order
XLIII Rule 1(d) of CPC, thereby questioned the impugned
judgement and order dated 09.01.2024 passed by the 2 nd
Additional Senior Civil Judge, Anand below Exh. 22 in
Restoration Application No. 87 of 2022 filed under Order IX
Rule 13 of CPC.
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3. The parties will be referred as far as possible as per
their original position in the suit.
Short facts of the case
4.0 The appellants herein are original defendants, whereas
opponents are original plaintiffs of Special Civil Suit No. 65
of 2011, which was decreed in favour of plaintiffs on
27.09.2017. According to the defendants, it was passed ex-
parte decree but initially they had challenged such ex-parte
judgement and decree by filing First Appeal No. 1228 of
2018 before this Court.
4.1 It appears that the aforesaid first appeal was dismissed
for non-prosecution by the Division Bench of this Court vide
its order dated 04.12.2018 and as such notice was discharged
which was issued in the aforesaid first appeal.
4.2 After about a year, passing of such order, restoration
application along with delay application came to be filed by
the defendants in the aforesaid appeal but the same was
also not entertained by the Division Bench of this Court, and
at the end of passing of such order, as there was request
made by the learned advocate for the defendants to allow
the defendants to withdraw such applications and with a
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view to file an application under Order 9 rule 13 of CPC
before the trial Court. Both these applications came to be
disposed of as withdrawn. Such order was passed by the
Division Bench of this Court in respective applications on
06.12.2021.
4.3 It appears that on 27.06.2022, the defendants have
preferred the impugned application being Restoration
Application No. 87 of 2022 under Order IX Rule 13 of CPC. It
appears that original defendant No.2 died thereby, his legal
heirs were joined in the impugned application being
applicants No. 2.1 to 2.8. The original plaintiffs have objected
the impugned application by filing their reply on 26.09.2023.
4.4 After hearing the parties at length, the trial Court vide
its judgment and order dated 09.01.2024 has rejected the
impugned application. The trial Court appears to have
noticed the fact that there is an incorrect statement made by
the defendants- applicants as regards to permission granted
by the Division Bench of this Court to file impugned
application under Order 9 rule 13 of CPC, thereby they have
withdrawn restoration application filed in the appeal is
found to be wrong and also it has been observed that decree
was not passed ex-parte, but the defendants have
participated in the proceedings.
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4.5 Being aggrieved and dissatisfied with the aforesaid
impugned judgment and decree, the defendants have
preferred the present Appeal from Order.
Submission of the appellants- original defendants
5.0 Learned advocate Mr. Sheth for the appellants would
submit that the trial Court has taken very hyper technical
view while rejecting the impugned application as such there
was no intention on the part of the defendants to make any
incorrect statement but due to inadvertence on their part,
appropriate facts were not came in their pleadings.
5.1 Learned advocate Mr. Sheth would further submit that
on one hand, the decree was passed ex-parte and on the
other hand, their First Appeal was dismissed for default and
at the time of its restoration, liberty was sought for from the
Division Bench of this Court to file an appropriate application
under Order IX Rule 13 of CPC before the trial Court, then-
after the impugned application came to be filed, so the trial
Court was required to consider the impugned application on
its merit.
5.2 Learned advocate Mr. Sheth further submits that as the
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First Appeal filed by the defendants was not dismissed on its
merits and having being dismissed for default, so also the
impugned application was rejected merely on hyper-
technical grounds, the defendants would be left remediless,
without being afforded an opportunity to defend the suit in
accordance with law. He would submit that there exists a
substantial defence in the matter and had the defendants
been given an opportunity to contest the suit, the decree
could have been avoided. Therefore, in the interest of
justice, one last opportunity ought to be granted to the
defendants to defend the suit on merits.
5.3 Learned advocate Mr. Sheth would further submit that
merely because the First Appeal was dismissed for default
and not on merits, it cannot be said that the matter was
adjudicated. Since there was no decision on the merits of the
case, the remedy under Order IX Rule 13 of the Code of Civil
Procedure, being an independent and distinct remedy, would
still be available to the defendants and could not have been
denied to them.
5.4 Learned advocate Mr. Sheth would further submit that,
as per the settled position of law, while considering the
question of "sufficient cause," a liberal and pragmatic
approach is required to be adopted by the Court in order to
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advance justice and the view or interpretation that defeats
the ends of justice ought to be avoided.
5.5 To buttress his argument, learned advocate Mr. Sheth
would refer and rely upon the following decisions:
(i) Rani Choudhury Vs. Lt. Col Suraj Jit Choudhury
reported in (1982) 2 SCC 596, more particularly in Para 15
& 16.
(ii) The Koushik Mutually Aided Co-operative Housing
Society Vs. Ameena Begum and another reported in 2023
INSC 1065, more particularly in Para-13.
(iii) Shantilal Chandrashanker and another Vs. Bai Basi
Widow of Bhura Anop reported in (1975) GLR 1.
5.6 Lastly, learned advocate Mr. Sheth would respectfully
submit that if this Court would not entertain the present
Appeal, the defendants would be non-suited without being
heard in the suit and as such with suitable cost to be paid to
the other side, this Court may exercise its appellate
jurisdiction in favour of defendants, thereby to quash and set
aside the ex-parte judgment and decree.
5.7 Making the above submission, learned advocate Mr.
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Sheth would request this Court to allow the present Appeal
from Order.
Submission of the opponents- original plaintiffs
6.0 Learned advocate Mr. Hemang Parikh and learned
advocate Mr. Rutviz Oza for the opponents would submit
that the impugned application filed under Order IX Rule 13
of CPC itself is not maintainable which was filed subsequent
to dismissal of their First Appeal and only on this count, this
Court should not entertain the present Appeal from Order.
6.1 Learned advocate Mr. Parikh would further submit that
as per explanation of under Order IX Rule 13 of CPC and as
per settle legal position of law, once decree though passed
ex-parte challenged by way of First Appeal before the
Appellate Court and the same is dismissed, later on, the
defendants cannot be permitted to file an application under
Order IX Rule 13 of CPC.
6.2 Learned advocate Mr. Parikh would further submit that
the judgments relied upon by learned advocate Mr. Sheth
are not applicable to the facts of the present case. He
submits that none of the decisions of the Hon'ble Apex Court
or this Court, as cited by Mr. Sheth, lay down the proposition
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that mere dismissal of an appeal for default would not
amount to dismissal on merits, thereby the party can
maintain an application under Order IX Rule 13 of CPC.
6.3 Learned advocate Mr. Parikh would further submit that
there are misleading and incorrect statement made in the
impugned application as regards to oral direction given by
the Division Bench of this Court, thereby, the defendant is
permitted to file impugned application. It is submitted that
the order dated 06.12.2021 passed by the Division Bench of
this Court in such restoration/ delay application in the First
appeal would not remotely whispered about any such
direction issued by the Division Bench of this Court, rather
defendants voluntarily withdraw their applications and filed
impugned application.
6.4 Learned advocate Mr. Parikh would further submit that
any incorrect and misleading statement made by the
applicants - defendants when filed in the matter and having
so found on record by the Court then after the Court should
not grant any discretionary relief in favour of such litigant
who has misguided the Court.
6.5 To buttress his argument, learned advocate Mr. Parikh
would refer and rely upon the decision of the Division Bench
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of this Court in the case of Bhanu Kumar Jain vs. Archana
Kumar & Anr. reported in 2005 (1) SCC 787.
6.6 Making the above submission, learned advocate Mr.
Parikh would request this Court to reject the present appeal.
Point for determination
(i) Whether an application under Order IX Rule 13 of CPC
be filed once First Appeal filed by the defendants has been
dismissed for default?
(ii) Whether in the facts and circumstance of the case, is
there any gross error of law or jurisdictional error committed
by the trial Court while rejecting the impugned application
filed by the defendants under Order IX Rule 13 of CPC ?
Analysis
7. To examine points germane in the appeal, I would like
to first refer the provisions of Order IX Rule 13 of CPC, which
reads as under :-
Order 9 Rule 13.
Setting aside decree ex parte against defendant.--In any case in which
a decree is passed ex parte against a defendant, he may apply to the
Court by which the decree was passed for an order to set it aside; and
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if he satisfies the Court that the summons was not duly served, or that
he was prevented by any sufficient cause from appearing when the
suit was called on for hearing, the Court shall make an order setting
aside the decree as against him upon such terms as to costs, payment
into Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set
aside as against such defendant only it may be set aside as against all
or any of the other defendants also:
[Provided further than no Court shall set aside a decree passed ex
parte merely on the ground that there has been an irregularity in the
service of summons, if it is satisfied that the defendant had notice of
the date of hearing and had sufficient time to appear and answer the
plaintiff's claim.]
[Explanation.--Where there has been an appeal against a decree
passed ex parte under this rule, and the appeal has been disposed of
an any ground other than the ground that the appellant has withdrawn
the appeal, no application shall lie under this rule for setting aside that
ex parte decree.]
7.1 The bare reading of the explanation of the aforesaid
provisions, would suggest that once the appeal which was
filed against the ex-parte decree has been disposed of on
any ground, other than the ground that the appellant has
withdrawn the appeal, no application shall lie under Order IX
Rule 13 of CPC for setting aside such ex-parte decree.
7.2 So far as the aforesaid issue germane in the present
appeal is squarely covered by the several decisions of the
Hon'ble Apex Court and as such no longer remain res-
integra. Although, learned advocates for the respective
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parties have placed reliance upon several decisions to
support their arguments, but I would like to place reliance
upon and to refer the following decision of the Full Bench of
the Hon'ble Apex Court in the case of N. Mohan Vs. R.
Madhu reported in (2020) 20 SCC 302 wherein reiterated
position of law having held thus:
"13. After referring to Bhanu Kumar Jain and other judgments and
observing that the defendant can take recourse to both proceedings -
Order IX Rule 13 CPC as well as the appeal under Section 96(2) CPC,
in Neerja Realtors (P) Ltd. v. Janglu (Dead) Through Legal
Representative (2018) 2 SCC 649, the Supreme Court held as under:-
"17. A defendant against whom an ex parte decree is
passed has two options: the first is to file an appeal. The
second is to file an application under Order 9 Rule 13. The
defendant can take recourse to both the proceedings
simultaneously. The right of appeal is not taken away by
filing an application under Order 9 Rule 13. But if the
appeal is dismissed as a result of which the ex parte
decree merges with the order of the appellate court, a
petition under Order 9 Rule 13 would not be maintainable.
When an application under Order 9 Rule 13 is dismissed,
the remedy of the defendant is under Order 43 Rule 1.
However, once such an appeal is dismissed, the same
contention cannot be raised in a first appeal under Section
96. The three-Judge Bench decision in Bhanu Kumar Jain
(2005) 1 SCC 787 has been followed by another Bench of
three Judges in Rabindra Singh v. Financial Commr.,
Cooperation (2008) 7 SCC 663, and by a two-Judge
Bench in Mahesh Yadav v. Rajeshwar Singh (2009) 2
SCC 205. ........" [Underlining added]
17. When the defendant filed appeal under Section 96(2) CPC
against an ex-parte decree and if the said appeal has been dismissed,
thereafter, the defendant cannot file an application under Order IX Rule
13 CPC. This is because after the appeal filed under Section 96(2) of
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the Code has been dismissed, the original decree passed in the suit
merges with the decree of the appellate court. Hence, after dismissal of
the appeal filed under Section 96(2) CPC, the appellant cannot fall back
upon the remedy under Order IX Rule 13 CPC.
(emphasis supplied)
7.3 Even the decision so cited by the learned advocate Mr.
Sheth for the appellants of the Hon'ble Apex Court in the
case of Rani Choudhury (supra) wherein also the Hon'ble
Apex Court has observed thus :-
"15. A plain reading of the Explanation clearly indicates that if any
appeal against an ex-parte decree has been disposed of on any
ground other than the ground that the appellant has withdrawn the
appeal, no application for setting aside the ex-parte decree under
order 9, rule 13 of the Code will be entertained. The words used in the
Explanation are clear and unambiguous. The language used in the
explanation clearly suggests that where there has been an appeal
against a decree passed ex-parte and the appeal has been disposed
of on any ground other than the ground that the appellant has
withdrawn the appeal, no application shall lie under order 9, rule 13 of
the Code for setting aside the ex-parte decree. An appeal may be
disposed of on various grounds. It may be disposed of after proper
hearing on merits and this is usually the normal way of disposal of an
appeal. An appeal may be disposed of also for non prosecution
thereof. Though the dismissal of an appeal on the ground of non
prosecution of the same is not disposal of the appeal on merits, yet the
dismissal of the appeal for non-prosecution results in the disposal
thereof. An appeal may also be dismissed on the ground of limitation,
if condonation of delay in filing the appeal is not allowed by the Court.
An appeal may also be liable to be dismissed for non compliance with
any condition relating to the filing of the appeal and also for other
reasons. An appellant is also entitled to withdraw the appeal and the
withdrawal of the appeal also results in the disposal of the appeal,
though in such a case no merits of the appeal are adjudicated upon.
The language used in the Explanation makes it clear that the
withdrawal of an appeal is considered to be disposal of the appeal, as
contemplated in the Explanation. It is significant to note that though an
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appeal may be disposed of on very many grounds the Legislature has
thought it fit to provide in the Explanation that only when an appeal
against an ex-parte decree is disposed of on the ground that the
appellant has withdrawn the appeal, the bar created to the
maintainability of an application under order 9, rule 13 of the Code for
setting aside the ex-parte decree will not apply. The Legislature must
be presumed to know that there are various ways of disposal of an
appeal. The Legislature has, however, thought it fit to provide that
when an appeal has been preferred against an ex-parte decree, the
disposal of the appeal on any ground excepting the solitary ground of
disposal of the appeal by withdrawal of the same by the appellant, will
create a bar to the maintainability of an application under Order 9, rule
13 of the Code of Civil Procedure. By specifically providing in the
Explanation that the disposal of any appeal from the ex- parte decree
on any ground other than the solitary ground of withdrawal of the
appeal by the appellant, the legislative intent is made manifestly clear
that in all other cases of the disposal of the appeal on any other
ground than the ground of withdrawal of the appeal, there will be a bar
to the maintainability of the application under order 9, rule 13 and no
application will lie under order 9, rule 13 for the setting aside of an ex-
parte decree. Withdrawal of an appeal by an appellant does not result
in any adjudication on merits. Even then, the withdrawal of an appeal
is still considered to be a disposal of the appeal; and the disposal of an
appeal only on this ground of withdrawal of the appeal by the
appellant, it is made clear in the Explanation, will not create any bar to
the maintainability of the application under order 9, rule 13 of the Code
of Civil Procedure. On a proper interpretation of the explanation we are
of the opinion that where there has been an appeal against an ex-
parte decree and the appeal has not been withdrawn by the appellant
and has been disposed of on any ground, the application under order
9, rule 13 of the Code of Civil Procedure will not lie and cannot be
entertained.
(emphasis supplied)
8. Upon conjoint reading of the aforesaid decisions of the
Hon'ble Apex Court would clear any doubt in the mind of
everyone that once Regular Appeal filed against ex-parte
decree which is dismissed for any reason except such appeal
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not withdrawn by the appellant, later on defendant-
appellant as the case may be is not allowed to file an
application under Order IX Rule 13 of CPC.
9. If this dictum of law apply to the facts on hand, it is
undisputed that the defendants had challenged ex-parte
decree passed by the trial Court by way of the First Appeal
under Section 96 of CPC being First Appeal No. 1228 of 2018
which was dismissed, al-beit, for non-prosecution on
04.12.2018 and its restoration / delay applications were not
entertained being withdrawn by the defendants/ appellants.
10. In light of the aforesaid facts of the present case, the
defendants could not have filed any application under Order
IX Rule 13 of CPC, once their first appeal was dismissed by
division bench of this Court. As it is not maintainable in the
light of the explanation given under Order IX Rule 13 of CPC.
11. So far as the argument of learned advocate Mr. Sheth
for the appellants as regards to fact that dismissal of such
appeal was not on its merit but it was dismissed for non-
prosecution, it is not at all relevant factor to be considered
by the trial Court and or by this Court in the present appeal
inasmuch as, First Appeal preferred by the defendants has
been dismissed which is undisputedly not withdrawn by
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them.
12. In the case of Rani Choudhury (supra) the Hon'ble Apex
Court has also considered several factors and after
considered all such eventuality ultimately concluded and
opined that when appeal has not been withdrawn by the
appellants and has been disposed of on any ground, the
application under Order IX Rule 13 of CPC will not be
maintainable thereby, cannot be entertained.
13. Thus, in view of the aforesaid peculiar facts and
circumstances of the present case and in the light of the
aforesaid provisions and the ratio laid down by the Ho'ble
Apex Court if apply to the facts of the present case, there
would be only one conclusion that the impugned application
itself is held to be not maintainable.
14. Once this Court comes to the conclusion that the
impugned application was not maintainable in law, question
of examine other aspect of the matter would not arise.
Nonetheless, I would like to observe that considering the
incorrect and misleading statement made by the applicants-
defendants in the impugned application, inasmuch as the
Division Bench of this Court while permitting withdrawal of
restoration /delay applications filed by the defendants in the
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aforesaid First Appeal, nowhere in its order dated 06.12.2021
whispered that defendants should file an application under
Order IX Rule 13 of CPC. Per contra, it was voluntary act on
the part of the applicants/ defendants to withdraw such
applications with a view to file impugned application. When
any litigant makes such false, incorrect and misleading
statement in the application, no discretionary relief can be
granted in favour of such litigant. To that extent, I am in
complete agreement with the view taken by the trial Court
while rejecting the impugned application on such count.
15. Thus, in view of the aforesaid, this Court is not at all
impressed upon by any of the submissions made by the
learned advocate for the appellants and the same requires to
be rejected in toto.
Conclusion.
16. The upshot of the aforesaid observations, discussions
and reasons, leads to following conclusion:-
16.1 The impugned application filed under Order IX
Rule 13 of CPC by the defendants after exhausting remedy
of filing Regular First Appeal under Section 96 of CPC before
this Court when appeal stands dismissed for default then, as
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per explanation of Order IX Rule 13 of CPC, such impugned
application is not maintainable.
16.2 Once the impugned application itself held to be not
maintainable and having found that defendants-appellants
have made incorrect and misleading statement in the
impugned application as observed hereinabove, no fault can
be found by the trial Court when it has rejected the
impugned application and as such this Court would not
found any illegality, irregularity or jurisdictional error
committed by the trial Court while passing the order which is
impugned in the present Appeal from Order.
17. In view of the aforesaid, the present Appeal from Order
lacks merit and requires to be dismissed which is hereby
dismissed in limine. Notice discharged. No order as to cost.
18. As a sequel, Civil application would not survive and
disposed of accordingly.
(MAULIK J.SHELAT,J)
SALIM/
