Madhya Pradesh High Court
Akash Patel vs Bhawani Singh on 8 May, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
C.R.No.282-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 8th OF MAY, 2025
CIVIL REVISION No. 282 of 2024
AKASH PATEL
Versus
BHAWANI SINGH AND ANOTHER
Appearance:
Ms. Gulabkali Patel with Shri Hitendra Vishwakarma - Advocates for
the petitioner.
Shri Bhavil Pandey - Advocate for respondent 1 through Video
Conferencing.
Shri Reji Mathai - Panel Lawyer for respondent 2/State.
ORDER
This civil revision has been preferred by the petitioner/plaintiff
challenging the order dated 01.09.2023 passed by Civil Judge Senior Division,
Begumganj, District Raisen, in UNCIV No.19/2023 (MJC) whereby trial Court
has allowed respondent/defendant 1's application under Order 9 Rule 13 CPC
and set aside exparte judgment and decree dated 17.06.2022.
2. As has been narrated by learned counsel for the parties, facts in short
are that a civil suit for specific performance on the basis of unregistered
agreement of sale dated 01.08.2016 was instituted on 12.05.2018 by the
petitioner/plaintiff, whereby the land in question was agreed to sell for
consideration of Rs.1,00,00,000/- (Rupees one crore only) out of which an
amount of Rs.98,00,000/- was allegedly paid by the plaintiff to the defendant 1
C.R.No.282-2024
in advance and as the defendant 1 did not execute the sale deed, the suit was
filed with the prayer for execution of sale deed.
3. Upon service of summons, the defendant 1 appeared and filed written
statement but after framing of issues, his duly engaged counsel did not appear,
therefore, trial Court vide order dated 22.01.2020 proceeded exparte against him
and after recording exparte evidence of the plaintiff, passed the judgment and
decree of refund of advance sale consideration amount, whereas no specific
prayer was made in that regard, in the plaint.
4. Upon getting knowledge of the exparte judgment and decree dated
17.06.2022 through execution proceedings, the defendant 1 moved an
application under Order 9 Rule 13 CPC for setting aside exparte judgment and
decree along with an application under Section 5 of the Limitation Act with the
contentions that originally the suit was filed in the Court of Civil Judge Class-I,
Silwani but thereafter it was transferred to the Court at Begumganj because
there did not remain court of Civil Judge Class I at Silwani, resultantly and due
to non appearance of counsel for the defendant 1, suit was proceeded exparte
that too without any notice to the defendant 1. On inter alia contentions, the
application was prayed to be allowed.
5. Upon service of notice of the application, the petitioner/plaintiff
appeared and filed reply to the applications under Section 5 of the Limitation
Act as well as Order 9 Rule 13 CPC, thereupon trial Court recorded evidence of
C.R.No.282-2024
the parties and after hearing arguments and upon due consideration of the
material available on record, came to conclusion that there is sufficient cause
for condonation of delay in filing of the application under Order 9 Rule 13 CPC
and as before or after proceeding exparte against the defendant 1, he was not
informed about the proceedings of the civil suit and further he was not aware
about transfer of the suit from the court of Civil Judge Class I, Silwani to
Begumganj, therefore, there was sufficient ground for his non appearance and
accordingly allowed the application vide impugned order dated 01.09.2023.
6. Learned counsel for the petitioner/plaintiff submits that after service of
summons the defendant 1 appeared and filed written statement, therefore, it was
his duty to take care of his case and in the civil suit, after filing written
statement, he was well aware about transfer of the case from Silwani to
Begumganj, therefore, he cannot take plea of ignorance about the proceedings
of the civil suit as well as passing of the exparte judgment and decree by trial
Court. He submits that after passing of exparte judgment and decree, as the
defendant was aware of it, therefore, trial Court has committed illegality in
allowing the application under Section 5 of the limitation Act as well as the
application under Order 9 Rule 13 CPC. With these submissions he prays for
allowing the civil revision.
7. Learned counsel appearing for respondent/defendant 1 supports the
impugned order and prays for dismissal of civil revision.
C.R.No.282-2024
8. Heard learned counsel for the parties and perused the record.
9. Undisputedly, originally the civil suit was filed in the court of Civil
Judge Class- I, Silwani and as this court did not remain continue thereat,
therefore, suit was transferred from Silwani to Begumganj, District Raisen.
Further on 22.01.2020, duly engaged counsel of the defendant 1 did not appear,
therefore, trial Court proceeded exparte against the defendant 1. Apparently,
thereafter no notice was issued by trial Court to the defendant 1 before
proceeding exparte and it recorded exparte evidence of the plaintiff and passed
exparte judgment and decree dated 17.06.2022.
10. Hon'ble Supreme Court in the case of Malkiat Singh and another vs.
Joginder Singh and Others, (1998) 2 SCC 206 and a coordinate Bench of this
Court in the case of Benibai (Smt.) vs. Smt. Champabai, 1996 JLJ 436, have
held that after pleading no instructions by duly engaged counsel, the court
should also inquire the cause of it. In both the said cases, as the counsel pleaded
no instructions in the matter, therefore, the Hon'ble Courts found it to be a
sufficient ground for non appearance and set aside the exparte judgment and
decree.
11. Although, in the instant case, the counsel appearing for defendant 1
did not plead no instructions, but without any information to the defendant 1, he
chose not to appear in the suit and consequently the suit was proceeded exparte
against the defendant 1.
C.R.No.282-2024
12. In the light of aforesaid decisions in the case of Malkiat Singh
(supra) & Benibai (supra), it is clear that when the duly engaged counsel of the
defendant 1 did not appear, then it was for the court to issue fresh
notice/summons to the defendant 1 for his appearance in the suit, before
proceeding exparte against him.
13. In view of aforesaid discussion and for the reasons mentioned in the
impugned order and especially in the circumstances where in the suit for
specific performance, decree for refund of alleged advance consideration was
passed just contrary to law laid down by Hon'ble Supreme Court in the case of
K.R. Suresh vs. R. Poornima & Ors., 2025 INSC 617, this Court does not find
any illegality in the impugned order passed by trial Court.
14. Resultantly, this civil revision fails and is hereby dismissed.
15. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
SN
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Date: 2025.05.10 12:50:26 +05'30'
