Madhya Pradesh High Court
Vijay Kumar Gupta vs Maheshchandra Bejal on 12 November, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:28764
1 MA-2261-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 12 th OF NOVEMBER, 2025
MISC. APPEAL No. 2261 of 2018
VIJAY KUMAR GUPTA
Versus
MAHESHCHANDRA BEJAL AND OTHERS
Appearance:
Shri Anil Sharma - Advocate for appellant.
Shri Anand Raghuwanshi- Advocate for respondents.
ORDER
This miscellaneous appeal under Order XLIII Rule 1 of the Code of Civil
Procedure, 1908, has been preferred by the appellant/defendant No.4 assailing the
order dated 22.01.2018 passed by the Fourteenth Additional District Judge,
Gwalior, in Misc. Civil Case No.26 of 2014, whereby the application filed under
Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte
judgment and decree dated 08.07.2008 has been rejected.
2. Briefly stated, the respondent No.1 instituted a civil suit for specific
performance of contract, cancellation of sale deed and possession of the suit
property, which was decreed ex parte on 08.07.2008. The appellant moved an
application under Order IX Rule 13 of the Code of Civil Procedure on the ground
that the summons were not duly served upon him, as they were not accompanied
by copies of the plaint and documents. It was further urged that after the appellant
was proceeded ex parte, the plaintiff was permitted to amend the plaint, but the
amended pleadings were not served upon the appellant, which rendered the
proceedings vitiated. The trial court, however, dismissed the application.
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3. It is submitted on behalf of the appellant that the service of summons
without copies of the plaint and documents cannot be treated as valid service in
law. It is further urged that the proceedings for amendment of the plaint without
notice to a party already proceeded ex parte are contrary to the settled procedure,
and therefore, the decree so passed is liable to be set aside.
4. Learned counsel for the respondents opposed the appeal and supported the
impugned order.
5. On hearing the learned counsel for the parties and upon perusal of the
record, it appears that the court below failed to appreciate the scope and object of
Order IX Rule 13 of the Code of Civil Procedure. The said provision is intended to
ensure that no person is deprived of the opportunity of hearing on account of any
technical or procedural lapse.
6. It is a settled principle of law that the expression "sufficient cause" in
Order IX Rule 13 must receive a liberal construction so as to advance substantial
justice. The provisions of the Code of Civil Procedure are designed to facilitate
justice and not to penalize an innocent litigant for a bona fide mistake. It is also
well settled that when non-appearance is not deliberate or willful, and reasonable
explanation is furnished, the court should adopt a liberal approach in setting aside
an ex parte decree.
7. It is further a settled principle that where service of summons is defective
or incomplete, the ex parte decree cannot be sustained in the eyes of law.
Similarly, when pleadings are amended during the pendency of the suit, notice of
such amendment must be served even upon a party proceeded ex parte, as a matter
of fair procedure.
8. Considering the above settled position of law and the circumstances of the
present case, this Court is of the view that the appellant has shown sufficient cause
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for non-appearance. The trial court ought to have exercised its discretion liberally
in the interest of justice.
9. Accordingly, the appeal is allowed. The order dated 22.01.2018 passed
by the court below is set aside. The application filed by the appellant under Order
IX Rule 13 of the Code of Civil Procedure stands allowed, subject to payment of
cost of Rs.10,000/- to the respondent No.1 on or before 15th December, 2025.
Upon deposit of the said cost before the trial court, the trial court shall restore the
original suit to its file and proceed in accordance with law after affording due
opportunity of hearing to all parties.
10. In view of aforesaid, the instant appeal stands disposed of.
(HIRDESH)
JUDGE
MKB
