Madhya Pradesh High Court
Narayan vs Mannalal on 17 April, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:10212
1 CR-152-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 17th OF APRIL, 2025
CIVIL REVISION No. 152 of 2019
NARAYAN
Versus
MANNALAL
Appearance:
Mrs. Swati Sharma - Advocate for the petitioner.
Shri Akshat Pahadia - Advocate for respondent.
ORDER
With the consent of learned counsel for the parties, the matter is
finally heard.
This civil revision under Section 115 of the CPC has been
preferred by the defendant/petitioner being aggrieved by the order dated
16.05.2018 passed by the Trial Court as affirmed by order dated 21.02.2018
passed by the Appellate Court.
2. The facts of the case in brief are that the respondent/plaintiff had
instituted an action against the defendant for recovery of a sum of Rs.5
Lakhs from him. The same was registered as Civil Suit No.7-B/2015 in the
Court of Civil Judge, Class -II, Kukshi, District- Dhar. Upon service of
summons upon him the defendant appeared before the Trial Court and
engaged a counsel. He continued to appear before the Trial Court for a
considerable period of time but thereafter absented himself, as a result of
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2 CR-152-2019
which he was proceeded against ex parte and eventually an ex parte
judgment and decree was passed against him on 13.07.2017.
3. Thereafter, on 10.11.2017 the defendant filed an application
under Order 9 Rule 13 of the CPC before the Trial Court for setting aside the
ex parte judgment and decree dated 31.07.2017. Since the same was barred
by time an application under Section 5 of the Limitation Act for condonation
of delay was also filed by him. Reply to the said applications was filed by the
plaintiff.
4. By order dated 16.05.2018 the Trial Court held that defendant
always had knowledge of the suit and had appeared in the same but had
thereafter absented himself and the reason furnished by him for condonation
of delay in filing the application for setting aside abatement is not sufficient.
In consequence the application under Section 5 of the Limitation Act was
dismissed and consequently the application under Order 9 Rule 13 of the
CPC was also dismissed as barred by time. The said order has been
maintained by the appellate Court by order dated 21.12.2018 in appeal
having been preferred by the defendant.
5. Learned counsel for the defendant has submitted that the
defendant is a rustic villager and was not having the knowledge of legal
requirements and procedures. He had engaged a counsel and had appeared in
the proceedings and had filed his written statement. He had been assured by
his counsel that he need not remain present on each and every date of
hearing and that whenever his presence would be required he would be
intimated of the same. However, no such intimation was sent by his counsel
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3 CR-152-2019
who stopped appearing in the proceedings without any notice to him. The
defendant was not aware of the passing of ex parte judgment and decree and
acquired knowledge of the same only when he was told by his local counsel
on 12.10.2017 about the same. Thereafter, upon applying for the certified
copy and receiving the same application under Order 9 Rule 13 of the CPC
was preferred by him promptly. There was hence no deliberate delay on his
part in filing the application and the reasons furnished by him were sufficient
and consequently the delay in filing the application ought to have been
condoned and the application ought to have been allowed.
6. Per contra, learned counsel for the plaintiff has submitted that the
reasons as furnished by the defendant for condonation of delay in filing the
application and in remaining ex parte before the Trial Court is wholly false
and made up. The defendant had appeared in the suit and had participated in
the proceedings. Thereafter, he deliberately absented himself and did not
appear hence his counsel had also stopped appearing. He was always aware
of the proceedings hence it cannot be said that he had no knowledge of the
same. He also had knowledge of the passing of the ex parte judgement and
decree. Plaintiff has been litigating since a period of ten years for recovery of
his amount but has not received anything from the defendant as yet. Both the
Courts below have found that no sufficient reason has been given by the
defendant for condonation of delay which finding is based on the evidence
on record and does not warrant any interference. It is further submitted that
since only application under Section 5 of the Limitation Act has been
rejected by the Trial Court which has been affirmed in appeal this Civil
NEUTRAL CITATION NO. 2025:MPHC-IND:10212
4 CR-152-2019
Revision is not maintainable which hence deserves to be dismissed.
7. I have considered the submissions of the learned counsel for
the parties and have perused the record.
8. While the trial Court rejected the application under Section 5 of
the Limitation Act for condonation of delay but for same reasons it also
dismissed the application under Order 9 Rule 13 of the CPC preferred by the
defendant. It cannot be said that only the application under Section 5 of the
Limitation Act was decided. The order passed by it clearly mentions that the
application under Order 9 Rule 13 of the CPC is being rejected. Whatever
may be the reason but the fact remains that the application under Order 9
Rule 13 of the CPC was rejected. Against the same remedy of appeal was
available to the defendant which has been availed by him. Against the
appellate order the defendant has remedy of Civil Revision under Section
115 of the CPC as has been held by this Court in Johra Bee vs. Jaguar
(2010) 1 MPLJ 98. Thus, the contention of learned counsel for the
defendant as regards maintainability of this revision is overruled.
9. From the record of the case, it is observed that the suit was filed
by the plaintiff on 9.10.2015. Upon service of summons upon him the
defendant had appeared before the Trial Court and had filed his written
statement contesting the claim. He continued to appear before the Trial Court
regularly for a period of one and a half years. It hence cannot be said that the
defendant has been totally negligent in prosecution of his case. It was his
specific averment in the application for condonation of delay that he is a
resident of a place 125 -150 kilometres from the place where suit had been
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5 CR-152-2019
instituted. He had through his local counsel Shri Sanjeev engaged Shri Saifee
Shad as Advocate at Barwani to prosecute the case on his behalf. During
pendency of the suit his counsel at Mandleshwar had taken his signatures on
an application and affidavit for summoning certain records stating that the
same would take time and during this period his presence of would not be
necessary. Whenever he would be required to attend the case he would be
intimated of the same. His counsel did not send any intimation to him for a
considerable period of time. On being contacted he was told that the
Presiding Officer has been transferred and the proceedings are pending. On
12.10.2017 his local counsel informed him that his counsel at Mandleshwar
has intimidated him that an ex parte judgment and decree has been passed
against him. Thereafter, he immediately applied for the certified copy of the
judgment and decree on 24.10.2017 from which he for the first time came to
know that since 18.07.2017 his counsel has not been appearing due to which
the decree has been passed.
10. The reasons given by the defendant have been found to be
insufficient by the Courts below holding that they are as regards negligence
of his counsel which are not acceptable since he has himself been careless as
he had not appeared before the Trial Court himself and had not taken
knowledge from his counsel as regards the proceedings.
11. The defendant had specifically stated that his counsel had taken
his signatures on an application and an affidavit for summoning of certain
record. He had informed him that the record would take time to be
requisitioned and during this period his presence would not be required. The
NEUTRAL CITATION NO. 2025:MPHC-IND:10212
6 CR-152-2019
same was quite a reasonable explanation. If the case was to remain pending
for summoning of record then it would not have been necessary for the
defendant to appear on each and every date of hearing. He has categorically
stated that his counsel had told him that whenever his presence would be
required he would be intimated of the same over the phone. He however did
not do so and stopped attending the hearings hence it cannot be said that the
defendant has been negligent towards prosecution of his case. The fact that
he had appeared before the Trial Court and had filed his written statement
and had continued to appear for a period of more than one and a half year is
itself sufficient to demonstrate that he had every intention of contesting the
suit. His explanation that he had been told by his counsel that whenever
required he would be intimidated over the phone is also a genuine reason and
ought to have been accepted by the Courts below. If his counsel did not
inform the defendant of the proceedings of the case it cannot be said that he
himself has been negligent. Moreover the delay in preferring the application
under Order 9 Rule 13 of the CPC is not very huge but is of little more than
two months only. The defendant may have engaged other counsel also along
with his main counsel but then he has specifically stated that his main
counsel had told him that he would be informed of the proceedings and
merely for engaging some other counsel along with his main counsel the
reason given by the defendant cannot be said not to be genuine.
12. In my opinion, the defendant had shown sufficient cause for
condonation of delay in filing the application under Order 9 Rule 13 of the
CPC and had also furnished sufficient reason for setting aside the ex part
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7 CR-152-2019
judgment and decree which hence ought to have been accepted by the Courts
below who have however erred in declining to do so.
13. As a result, the impugned orders passed by the Courts below
cannot be sustained and are hereby set aside. The application under Section 5
of the Limitation Act as well as under Order 9 Rule 13 of the CPC preferred
by the defendant stand allowed. The ex parte judgment and decree dated
31.07.2017 passed against the defendant is hereby set aside and the Trial
Court is directed to proceed further in accordance with law. Considering the
fact that the suit has remained pending since the year 2015 the Trial Court is
directed to expedite the hearing. Since the contesting parties are represented
before this Court they are directed to appear before the Trial Court on
05.05.2025 for which date no fresh notices would be required to be issued to
them.
The revision is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
jyoti
