Gujarat High Court
Rajeshkumar Shankarlal Jain vs Ratanben Parasbhai Shah (Amendment ... on 4 November, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 79 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 79 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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RAJESHKUMAR SHANKARLAL JAIN
Versus
RATANBEN PARASBHAI SHAH (AMENDMENT CARRIED OUT AS PER ORDER
DATED 11/07/2025)
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Appearance:
MR ISHAN H RAJDEV(11634) for the Appellant(s) No. 1
MR NITIN M AMIN(126) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/11/2025
ORAL JUDGMENT
1. Admit. Learned advocate Mr. Nitin M. Amin waives
service of notice of admission behalf of respondent.
2. With the consent of the parties, the matter is taken up
for hearing.
3. The present Appeal from Order is filed under Section 104
read with Order 43 (i)(d) of CPC, 1908 (hereinafter referred to
as 'CPC') against the order dated 28.02.2025 passed by the City
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Civil & Sessions Court, No. 14, Ahmedabad City in Civil Misc.
Application No. 934 of 2022.
4. The parties will be referred as far as possible as per their
original position in the suit.
Facts of the case
5. The appellant herein is original applicant - defendant,
whereas respondent happens to be original plaintiff -
opponent of impugned application being Civil Misc. Application
No. 934 of 2022. The respondent appears to have filed Civil
Suit No. 298 of 2021 seeking eviction and mesne profit of suit
property against the appellant on 06.03.2021, which came to
be decreed in his favour on 03.11.2021, albeit, without leading
any evidence as appellant remained absent.
5.1 So, the appellant-defendant appears to have filed
impugned application being CMA No. 934 of 2022 under Order
IX rule 11 of CPC praying for setting aside the aforesaid ex-
parte decree, wherein there was delay in filing such
application, which was condoned by the trial Court.
5.2 It is the case of the defendant that after receipt of
summon/notice in the aforesaid suit, he engaged a Lawyer
namely Mr. Chandrabhushan Jaiprakash Pandey. It is submitted
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that the suit documents were handed over to him. Nonetheless
record suggests that one Lawyer namely Mr. M.J. Shah
appeared before the trial Court and gave an undertaking on
19.03.2021 that he has instruction to appear on behalf of the
defendant. Thereafter, no such appearance /Vakalatnama
came to be filed by the learned advocate Mr. M.J. Shah. It is
further stated by the defendant in impugned application - Civil
Misc. Application No. 934 of 2022 that learned advocate Mr.
M.J. Shah was never engaged by him, rather it is undisputed
that no vaklatnama filed by learned advocate Mr. M.J. Shah,
thus, he did not appear and contest the suit on behalf of
defendant.
5.3 Be that as it may, the fact remain that appellant/
defendant never appeared and contested the suit. So,
respondent-plaintiff appears to have filed an application below
Exh. 16/17 under Order IX rule 11 of CPC and requested the
trial Court to pass decree and accordingly, decree of eviction
came to be passed against appellant.
5.4 The plaintiff has contested the impugned application by
filing her reply contending inter-alia that defendant has
deliberately not appeared before the trial Court in the suit and
to delay the proceedings, the impugned application is filed. It is
further stated that no action was taken against the Advocate
concerned by defendant, and to get sympathy from the Court,
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false facts presented by the defendant.
5.5 After hearing the parties, the trial Court having not found
any sufficient cause made out by the appellant / defendant,
who never appeared before the trial Court, not entertained
the impugned application, whereby rejected the impugned
application.
5.6 It may be noted here that pending impugned application,
it appears that plaintiff-decree holder filed an Execution
Application No. 73 of 2022 wherein, the Executing Court vide
its order dated 01.03.2023 directed the defendant -
judgement debtor to deposit Rs. 7,000/- per month. It is
reported to this Court that defendant is regularly depositing
the amount of Rs. 7,000/- per month with the Executing Court/
trial Court and as such, there is no arrears/ default in such
deposit of the amount.
Submission of appellant- defendant
6. Learned advocate Mr. Nandish Thakkar with learned
advocate Mr. Ishan Rajdev would submit that defendant has
engaged a Lawyer to defend the suit but he has entrusted the
work to some other Lawyer, who not remained present on
behalf of defendant, whereby ex-parte decree came to be
passed against him. It is submitted that considering the facts
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and circumstances of the case, a sufficient cause made out by
defendant, not remained present to defend suit. It is
respectfully submitted that this Court may interfere with the
impugned order, inasmuch as, the trial Court has not properly
appreciated the facts of the case and misinterpreted the
provisions of law, thereby, passed the impugned order.
6.1 Learned advocate Mr. Thakkar would further submit that
the suit came to be filed on 06.03.2021, whereas the decree in
question came to be passed on 03.11.2021, that too on the
basis of one application filed by plaintiff below Exh. 16/17
under Order IX rule 11 of CPC. It is respectfully submitted that
the provisions of Order IX rule 11 of CPC would not apply to
the case on hand, as in the present case only one defendant
joined in the suit. So, the entire basis of passing of an ex-parte
decree by the trial Court on wrong application of provisions of
law, would be a ground, which ought to have been weighed to
the trial Court.
6.2 Learned advocate Mr. Thakkar would further submit that
the impugned application came to be filed with delay
application and as such, the grounds set out in filing the
impugned application is accepted by the trial Court, whereby
condoned the delay, in that circumstances, the impugned
application could not have been rejected by the trial Court. It is
respectfully submitted that defendant was totally unaware
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about passing of ex-parte decree against him when filed
impugned application, considering the time gap between
institution of the suit and passing of decree, it cannot be
alleged that to delay the suit proceeding, defendant
consciously allowed the suit to proceed ex-parte.
6.3 Learned advocate Mr. Thakkar would further submit that
no prejudice would cause to the plaintiff, if this Court grants
one opportunity to defendant. It is submitted that pursuance
to the order of this Court dated 06.05.2025, directing the
appellant /defendant to deposit exemplary cost of Rs.
25,000/-, is already complied with and as such, aforesaid
amount is already withdrawn by the respondent/plaintiff,
whereby plaintiff is already compensated in terms of cost for
the delay/ litigation.
6.4 Learned advocate Mr. Thakkar would further submit that
defendant is facing decree of eviction without defending it and
in that view of the matter also, in the interest of justice, this
Court may exercise its appellate power and grant one
opportunity to defendant to defend that suit in accordance
with law.
6.5 Learned advocate Mr. Thakkar would respectfully
submitted that even if the defendant having not appeared and
filed his written statement, plaintiff was required to submit
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her evidence in support of her plaint and its copy required to
be served upon the defendant, which undisputedly not
submitted/ given to defendant. To that extent also, decree in
question is passed not in-consonance with the provisions of
CPC, rather passed in violation of principles of natural justice.
6.6 Learned advocate Mr. Thakkar would humbly submit that
the defendant is also ready and willing to deposit a reasonable
amount over and above the amount already deposited with the
trial Court/ Executing Court. It is submitted that as per
calculation of defendant, if the amount calculated at the rate
of Rs. 7,000/- per month from the date of alleged default of
monthly rent till 01.03.2023 it comes around Rs. 3,30,000/- and
defendant if permitted to defend the suit without prejudice to
the right, ready to deposit such amount.
6.7 Making the above submissions, learned advocate Mr.
Thakkar would request this Court to allow the present appeal.
Submission of respondent-plaintiff
7. Learned advocate Mr. Nitin Amin would submit that there
is no merit in the present appeal and as such, just to cause
delay in getting fruits of the decree, defendant first filed
impugned application then this appeal. It is submitted that the
trial Court has considered all submissions so made by
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defendant and having not found any sufficient cause made out
by him, correctly rejected the impugned application.
7.1 Learned advocate Mr. Amin would respectfully submitted
that the suit was instituted seeking possession of suit property
occupied by defendant as a tenant, who not only failed to pay
leave and licence fee but not vacated the suit premises after
period of tenancy-licence period came to be over. It is
submitted that plaintiff is senior citizen lady, interested to get
her property back from the possession of defendant and
having title over the suit property, entitled to get decree as
prayed in the suit.
7.2 Learned advocate Mr. Amin would respectfully submit
that decree in question is not an ex-parte, inasmuch as,
defendant received summon/ notice of suit and failed to
appear without sufficient cause either in-person or through
Lawyer, no default can be found with such decree. It is
respectfully submitted that grounds set out in the impugned
application of non-appearing/defending the suit by defendant,
are not constituting sufficient cause as per the provisions of
CPC, thereby the trial Court has correctly rejected the
impugned application.
7.3 Learned advocate Mr. Amin would further submit that as
per leave and licence agreement executed between defendant
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and plaintiff being contractual obligation whereby required to
pay Rs. 20,000/- per month, in fact, defendant failed to pay
such amount and as on date, arrears of amount approximately
mounted to Rs. 25 lakh. It is submitted that when no action has
been taken by defendant against his so called engaged Lawyer
and or learned advocate Mr. M.J. Shah, this Court should not
accept such submission so canvassed by defendant.
7.4 At last, learned advocate Mr. Amin would request this
Court that even if this Court may grant one indulgence to
defendant, thereby, allowing him to defend the suit on merit,
an appropriate direction may be given to the trial Court for
expediting the suit proceeding and also imposed appropriate
condition upon defendant to pay / deposit mesne profit i.e. Rs.
20,000/- per month till final disposal of suit.
7.5 Making the above submissions, learned advocate Mr.
Amin would request this Court to dismiss the present appeal.
Analysis
8. The facts which are stated hereinabove are not in
dispute. The suit appears to have been filed seeking eviction of
suit property as according to the case of plaintiff, she let out
suit premises to defendant on leave and licence agreement
and monthly rent - licence fee agreed between parties to Rs.
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20,000/-. As defendant failed to pay monthly rent of Rs.
20,000/- and period of tenancy got over on 02.02.2021, having
not evicted the suit premises, suit in question filed seeking
recovery of Rs. 4,25,500/- with mesne profit till get possession
of suit premises.
9. It is remain undisputed on record that after service of
summon/notice of suit upon defendant, he never appeared in
the suit proceeding as according to him, he engaged a Lawyer
namely Mr. Chandrabhushan Jaiprakash Pandey, who also
never appeared before the trial Court in the suit proceeding.
One Lawyer namely Mr. M.J. Shah filed an undertaking below
Exh. 51 on behalf of defendant that he will file his Vakalatnama
but then-after he never filed his Vakalatnama, thus, defendant
never represented by any Lawyer in the suit.
10. When defendant did not appear / contest the suit, an
application came to be filed by plaintiff below Exh. 16/17
under Order IX rule 11 of CPC, whereby requested the trial
Court to pass decree in her favour. It appears that such
application was never served upon defendant and in absence
of any opportunity of hearing to be given to defendant, the
trial Court appears to have accepted the request made by
plaintiff, thereby, passed decree in favour of plaintiff as prayed
in Para-11(A) & (C) of plaint on 03.11.2021.
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11. It is remain undisputed on record that suit came to be
filed against sole defendant. Whether the trial Court could
have passed any decree against defendant exercising its power
under Order IX rule 11 of CPC?. To understand better, Order IX
rule 11 of CPC reads as under :-
ORDER IX -
Appearance of parties and
Consequence of non-appearance.
11. Procedure in case of non-attendance of one or more of
several defendants.--Where there are more defendants than one, and
one or more of them appear, and the others do not appear, the suit shall
proceed, and the Court shall, at the time of pronouncing judgment,
make such order as it thinks fit with respect to the defendants who do
not appear.
12. The bare reading of the aforesaid provisions of CPC
would clearly indicate that in a case where either one or more
of defendants would not appear, suit shall proceed and Court
shall, at the time of pronouncing judgment, making such order
as it think fit with respect to the defendants who do not
appear. Nonetheless, such provision of CPC would not be
applicable in a case where there is sole defendant in the suit.
13. Thus, in view of the aforesaid facts and circumstances of
the case and the provisions under which decree came to be
passed by the trial Court, apparently it passed not in
consonance with the provisions of CPC.
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14. Further, whenever any application filed by plaintiff,
seeing any prayer that too passing of decree in favour of her,
to observe the principle of natural justice, the trial Court could
have sent notice to defendant, then-after it could have passed
any order on the application. It remain undisputed that
application filed below Exh. 16/17 under Order IX rule 11 of
CPC never served upon defendant. So, decree of eviction
against defendant passed in violation of principle of natural
justice.
15. It is settle legal position of law that even if defendant not
filed any written statement and contest the suit, still burden
upon plaintiff to be discharged, to prove the facts alleged in
the plaint. To prove such fact alleged in the plaint, plaintiff
needs to file her oral evidence proving documentary evidence
submitted on record. Although discretion available to the
Court either to pronounce the judgment against defendant
who never filed written statement or make such order in
relation to suit as it thinks fit, in a case where facts are not in
dispute. Nonetheless, such the Court needs to draw such
satisfaction, which apparently missing in the case on hand.
[See : Order VIII rule 10 of CPC, in the case of ASMA LATEEF
& ANR V/s Shabbir Ahmad & Ors. reported in (2024) 4 SCC
696].
16. In the case on hand, no such occasion arose, inasmuch as,
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the trial Court has not passed decree on such basis but passed
the decree on wrong application of provision of CPC i.e. Order
IX rule 11.
17. Be that as it may, the fact remain that defendant though
served with summon/ notice of the suit, failed to contest the
suit on merit. At the same time, when it is specific case of
defendant that he has engaged a Lawyer, who did not appear
in the suit proceedings, resulted into passing of decree against
defendant, such fact could not have been brushed aside by the
trial Court on premise that litigant may be advised by the
Lawyer concerned not to appear in the suit and once the
decree passed by the Court, to gain sympathy from the Court,
may submit such reason of non-appearance.
18. According to my view, such an observation made by the
trial Court in Para-9 of its impugned order, is not only
erroneous, perverse but not proved on record. The trial Court
requires to consider the conduct of the parties before arriving
at such finding. As such, there is nothing on record to remotely
suggest that defendant deliberately not appeared in the suit,
thereby allowed to pass decree. According to my view, in
absence of any malafide proved on record, the trial Court
requires to consider the explanation coming forth from the
defendant liberally as its settled that "sufficient cause"
requires to construed liberally as ultimately it is endeavour of
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the trial Court to see that while accepting explanation of non-
appearance, paramount consideration would be to advance
justice rather to foreclose right of party on sheer technicality.
19. When the trial Court at the first instance condoned the
delay in filing impugned application whereby, prima-facie
satisfied with the explanation put forward in filing impugned
application in delay, according to my view, the trial Court could
have exercised its discretion in positive manner, rather
foreclosing the right of defendant to defend the suit on merit,
especially when the aforesaid glaring procedure irregularity/
illegality germane from the record of the case, when the
decree passed.
20. Having appreciated aforesaid facts and also grounds
agitated by learned advocate of the appellant-defendant, I am
of the view that the trial Court has erroneously rejected the
impugned application by not appreciating the facts and
provisions of law, under which the decree came to be passed
by the trial Court, thereby, committed serious error of law.
According to my view, sufficient cause made out by defendant
in not appearing and contested the suit. To that extent, I found
gross error committed by trial Court in not properly
appreciating the facts of the case rather on erroneous premise
as observed above, rejected the impugned application.
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21. At the same time, defendant is required to compensate
the plaintiff having failed to appear and contest the suit.
According to my view, plaintiff is compensated in terms of
money when defendant has deposited an amount of Rs.
25,000/- before this Court, which appears to have been
withdrawn by the plaintiff.
22. Further, to balance the equity between the parties and to
impose additional condition upon defendant, the appellant -
defendant is hereby directed to deposit a sum of Rs. 3,50,000/-
with the trial Court on or before 31 st December, 2025 and
requires to deposit of Rs. 20,000/- per month starting from
01.01.2026 till final disposal of suit. This deposit would without
prejudice to the rights and contention of respective parties.
The aforesaid amount deposited by defendant, will be subject
to the final outcome of suit, which requires to be decided on
its own merit by the trial Court.
Conclusion
23. The upshot of the aforesaid discussion, observations, and
reasons, I am of the view that the impugned order dated
28.02.2025 passed by the City Civil & Sessions Court, No. 14,
Ahmedabad City in Civil Misc. Application No. 934 of 2022 is
erroneous and contrary to the provisions of CPC, inasmuch as,
not passed in proper exercised of its power so vested in it,
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thus, requires to be quashed and set aside, which is hereby
quashed and set aside.
24. Consequently, the impugned application being CMA No.
934 of 2022 is hereby allowed, whereby, the decree dated
03.11.2021 passed by the trial Court in Civil Suit No. 298 of
2021 is hereby quashed and set aside.
25. Accordingly, Civil Suit No. 298 of 2021 is restored back on
its original file on condition that defendant shall deposit
aforesaid sum of Rs. 3,50,000/- on or before 31 st December,
2025 and without default start deposit the amount of Rs.
20,000/- per month as mesne profit starting from 01.01.2026
with the trial Court till final disposal of suit.
25.1 The trial Court shall deposit such amount in FDR of any
nationalized bank till disposal of the suit. Such deposit will be
subject to final outcome of the suit.
25.2 If ultimately plaintiff succeeds in the suit, trial Court shall
pass appropriate order of release of such amount alongwith
accrued interest thereon in favour of plaintiff. It goes without
saying that in a case of dismissal of the suit, defendant will
entitle to get back such amount with interest.
26. Once, defendant comply with the aforesaid direction,
then after, permitted to file his written statement/ evidence if
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any within a period of one month from the date of such
deposit of Rs. 3,50,000/-. Further, defendant should not make
any default in deposit of Rs. 20,000/ p.m. till final disposal of
the suit.
27. The considering fact that plaintiff being lady and senior
citizen, the trial Court is hereby directed to expedite the suit
proceeding.
27.1 The issues be framed as soon as the pleadings of the
parties get over. All concerned may see to it and extend their
full co-operation to the trial Court for early conclusion of trial
of the suit.
27.2 In any case, the trial Court shall hear and decide the suit
as early as possible preferably on or before 31 st December,
2026.
28. In view of the foregoing reasons and conclusion, the
present Appeal from Order is partly allowed to the aforesaid
extent. As a sequel, civil application for stay would not survive,
accordingly disposed of.
Sd/-
(MAULIK J.SHELAT,J)
SALIM/-
