[Cites 6, Cited by 0]

Gujarat High Court

Krishnan Satishbhai Patel vs Pankaj Vasantlal Jain on 22 January, 2026

                                                                                                                  NEUTRAL CITATION




                            C/AO/240/2025                                       JUDGMENT DATED: 22/01/2026

                                                                                                                  undefined




                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                         R/APPEAL FROM ORDER NO. 240 of 2025
                                                          With
                                       CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                        In R/APPEAL FROM ORDER NO. 240 of 2025

                      FOR APPROVAL AND SIGNATURE:

                      HONOURABLE MR. JUSTICE DEVAN M. DESAI
                      ==========================================================
                                   Approved for Reporting                       Yes           No

                      ==========================================================
                                             KRISHNAN SATISHBHAI PATEL & ANR.
                                                          Versus
                                                  PANKAJ VASANTLAL JAIN
                      ==========================================================
                      Appearance:
                      MR YN RAVANI(718) for the Appellant(s) No. 1,2
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                            Date : 22/01/2026

                                                            ORAL JUDGMENT

1. By way of present Appeal, the present appellants have

challenged the order dated 12.9.2025 passed by the

learned Judge of City Civil & Sessions Court, Ahmedabad in

Civil Misc. Application (DC) No.155 of 2024 below Exh.23,

by which, the application of present appellants to restore

Civil Suit No.908 of 2021 was rejected under Order 9 - Rule

13 of Code of Civil Procedure, 1908 (For short, hereinafter

referred to as `the CPC').

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

2. Heard learned advocate Mr. Y. N. Ravani for the appellants.

Perused the record.

3. The brief facts of the case are as under:

4. A civil suit was filed by the present respondent - original

plaintiff for the recovery of possession of the suit property,

which is situated at District Sub District Ahmedabad - 4

(Paldi) being T.P. Scheme No.26, Final Plot No.147 of

village Vasna, Taluka Sabarmati. An ex-parte judgment and

decree came to be passed by the learned trial Court on

1.2.2024 in favour of the respondent - plaintiff. The original

defendant- mother of present petitioner expired after the

judgment and decree on 24.2.2024. An application under

Order 9 - Rule 13 of the CPC for setting aside the judgment

and decree came to be filed by the present appellants.

After hearing the parties, learned Court below rejected the

said application. Being aggrieved and dissatisfied with the

impugned judgment and order, the appellants are before

this Court.

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

5. Learned advocate for the appellants, at the outset,

contended that the learned trial Court passed an ex-parte

decree without any opportunity of being heard given to the

mother of present appellants against whom the suit was

instituted. It is contended that pursuant to a loan

transaction, the original defendant executed an agreement

to sell in favour of the plaintiffs and thereafter, a registered

sale deed was executed in favour of the plaintiffs. It is also

contended that the mother of appellants did not receive

the full amount of consideration. It is further contended

that the plaintiff, by misusing the blank Cheques of the

appellant's mother, deposited the same in his bank and on

return of Cheques, the plaintiff had filed a complaint under

Section 138 of the Negotiable Instrument Act, 1881. It is

contended that the transaction was never that of a leave

and license as alleged by the plaintiff in the plaint. It is

further contended that the property in question is the

ownership property of the appellants and their mother,

which can be established on perusal of the sale deed. It is

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

therefore contended that the appellants have ownership

right in the suit property. It is submitted that the appellants

came to know about the impugned judgment and decree

from papers which were discovered after the death of

mother. The moment, appellants found that a suit has been

instituted, inquired about the status of the suit and upon

inquiry, they found that the impugned decree has been

passed against their mother and the defendant - mother

was directed to hand over the full and vacant possession of

the suit property. It is contended that if an opportunity is

given to permit the appellants to contest the suit, the

appellants would be able to establish that the suit of the

plaintiff is not maintainable and no decree of possession

can be passed against the mother. In support of his

contention, learned advocate for the Appellants has relied

upon the decision in the case of M. K. Prasad v. P.

Arumugam reported in AIR 2001 SC 2497. By relying

upon such decision, it is submitted that while deciding an

application under Order 9 - Rule 10 of the CPC, the Court

should keep in mind the judgment impugned and the

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

extent of property involved and the stake of parties. By

relying upon the decision of the coordinate bench of this

Court in the case of K.D. Patel v. State of Gujarat

reported in 1993(2) GLH 941, it is contended that a

liberal view is required to be taken for restoring the matter

to file if the matter has been dismissed for default of

appearance of litigant's advocate. Default of appearance

on the part of advocate may not be construed as a default

of the litigant in non-contesting the matter. No other

submissions are made except the above.

6. I have considered the submissions canvassed by learned

advocate for the appellants and also perused impugned the

judgment and decree as well as the paper-book placed on

record.

7. The grievance voiced out by the appellants in the present

appeal is that a Civil Suit for possession was filed against

the mother of appellants for the recovery of possession of

the suit property. The admitted and undisputed fact comes

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

out from the application under Order 9 Rule 13 of the CPC

is that there is no dispute that the summons of the suit was

not properly served upon the defendant - mother. It is also

not the case of the appellants that the learned advocate for

the defendant did not remain present and the suit

proceeded in the absence of defendant mother. The bone

of contention in the application as well as during the

submissions of learned advocate for the appellants is that

the transaction between plaintiffs and defendant was that

of a money transaction and the mother of appellants

executed a Banakhat in favour of the plaintiffs as the

defendant - mother was in need of money and as a

security, the agreement to sell was executed. A sale deed

was executed pursuant to agreement to sell.

8. It is also submitted by learned advocate for the Appellants

that after the judgment and decree passed against the

mother defendant, the present appellants have filed a

separate suit on a separate cause of action with regard to

the suit property. It is submitted by way of Special Civil Suit

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

No.286 of 2024, the appellants have sought for

cancellation of the registered sale deed dated 8.8.2018

and for declaration and permanent injunction against the

plaintiff - present respondent.

9. A copy of sale deed dated 8.8.2018 is placed on record at

page no.25 of the paper-book indicates that the sale deed

has been executed by defendant mother in favor of the

plaintiff - respondent. The leave and license agreement

dated 8th August, 2018 also came to be executed between

plaintiff and defendant, whereby, the suit property was

given on license basis to the mother. It is pertinent to

observe at this stage that during the lifetime of mother i.e.

from 8.8.2018 till her death, the original defendant has

never raised any objection or grievance with regard to the

execution of the sale deed and also with regard to

execution of a leave and license agreement in her favor. At

page number 59 of the compilation, appellants have

produced a copy of complaint filed by mother under

Section 154 of Cr.P.C. against the plaintiff and other

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

persons mainly alleging the threats being given by the

accused therein for the recovery of the loan amount. A

request was made to the Police Inspector Vasana police

station, Vasana, Ahmedabad to inquire with regard to the

allegations made in the complaint. Learned advocate for

the appellants submitted at this stage that no FIR has been

registered by the concerned police station pursuant to the

aforesaid complaint.

10. The case on hand is regarding an issue that when an

exparte decree is passed against the defendant, under

what circumstances the Court can be said to be satisfied

with the causes shown by defendant in the application as

sufficient cause. At this stage, it would be profitable to

reproduce the relevant provision of Order 9 Rule 13 of the

Code of Civil Procedure.

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 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

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

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.]

2[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.]"

11. Rule 13 of Order 9 of the CPC contemplates that the

defendant may apply to the Court for setting aside a

decree passed ex-parte. The condition precedent for

setting aside an ex-parte decree is that the defendant has

to satisfy 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, if satisfies may impose cost while setting aside an

ex-parte decree. The Proviso to Rule 13 of Order 9 states

that 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

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

had notice of the date of hearing and had sufficient time to

appear and answer the summons decree which is passed,

cannot be set aside. The Proviso to Rule 13 of Order 9

states that if it is satisfied that the defendant had noticed

of the date of hearing and had sufficient time to appear

and answer the plaintiff's claim, 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.

12. This Court has very minutely considered the application for

setting aside decree. In paragraph No.5 of the application,

it is stated by the appellants that on checking papers after

the death of their mother on 24.2.2024, appellants came to

know about the suit proceedings and a decree being

passed in the suit. Undisputedly, present appellants were

not parties to the suit proceedings. The defendant was the

mother, admittedly, though served with the summons and

notice of the suit neither appeared nor engaged any

advocate. The appellants while invoking the proviso of

Order 9 Rule 13 of the CPC must establish sufficient cause

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

for the non-appearance of defendant - mother in the suit

proceedings. In absence of even a word or statement in the

application as to why the mother, though served with the

summons did not contest the suit, no sufficient cause could

be presumed. It is not even the case of the appellant's that

defendant - mother was not aware about the suit

proceedings, the only contention raised by the appellant is

that the appellants were not aware about the suit

proceedings till they inquire from the documents after the

death of their mother.

13. In the case of M. K. Prasad (Supra), the facts which can

be gathered from reading the decision is that the appellant

- defendant No.9 was served with summons and appeared

through his counsel in the trial court and as the counsel for

the appellant did not appear and other defendants did not

contest the claim, the trial court decreed the suit.

Thereafter, an application for setting aside the judgment

and decree with an application for condonation of delay

came to be filed which was rejected by the learned trial

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

court against which the defendant filed Revision Petition

before the High Court which also came to be dismissed.

While interpreting sufficient cause as contemplated under

Section 5 of the Limitation Act, 1963 the Honorable Apex

Court in the background of the facts and more particularly

the reasons assigned in the application for condonation of

delay, condoned delay and set aside ex-parte judgment

and decree. In the present case, it is not the case of the

appellants that the learned counsel of the defendant

mother though engaged, did not remain present,

resultantly an ex-parte decree came to be passed. As

observed hereinabove, the appellants have not pleaded a

single instance showing any cause, much less, sufficient

cause for the non-appearance of defendant mother in the

suit proceedings. Considering the said fact, the decision

relied upon by learned advocate for the appellant is not

applicable.

14. In case of K.D Patel (Supra) as it can be found from

perusing the decision that averments were made in the

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

petition to the effect that the city of Ahmedabad was

affected by communal tension which was not controverted

by respondent. A telegram was also sent by the petitioner

for seeking adjournment is also not controverted by

respondent. This being one of the grounds for non-

appearing before the concerned authorities, the coordinate

bench of this Court condoned delay.

15. Even if the Court wants to take a lenient view in setting

aside a decree passed ex parte against defendant, the

defendant, at least must show a plausible sufficient cause

which prevented the defendant to appear and contest the

suit. The Court cannot presume any cause being a

sufficient cause and set aside a decree passed ex parte

merely on the statement that after mother's death, upon

inquiry from papers, applicants received the knowledge of

decree being passed against mother - original defendant.

Learned advocate for the appellant stated that a separate

civil suit challenging the sale deed and seeking a relief of

declaration is also filed and the same is pending as on

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

today. It appears from the record that the plaintiff in the

suit has claimed title of the suit property on the basis of a

registered sale deed. Since the question of title has been

raised, of course, after the impugned judgment and

decree is passed, this Court at this stage is not delving into

the controversy of title with regard to the suit property.

Therefore, I am limiting my observations only on the

question whether any case is made out by the appellants in

the application for setting aside ex-parte decree whereby

this Court can interfere in the reasonings and findings

given by the learned Court below.

16. I am in complete agreement with the findings given by the

learned trial Court and I am not inclined to interfere in such

findings considering the fact that no case is made out by

the appellants in establishing a sufficient cause for non-

appearance of defendant mother.

17. In view of above, the present Appeal lacks merit and it

requires to be dismissed. Accordingly, it is dismissed.

NEUTRAL CITATION

C/AO/240/2025 JUDGMENT DATED: 22/01/2026

undefined

Record and Proceedings, if any, be sent back to the

concerned authority, forthwith. Interim Relief, if any, stands

vacated forthwith. No order as to costs.