Madhya Pradesh High Court
Smt. Kusumkali vs Smt. Parvati Devi on 13 October, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:51528
1 MP-3995-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 13th OF OCTOBER, 2025
MISC. PETITION No. 3995 of 2025
SMT. KUSUMKALI AND OTHERS
Versus
SMT. PARVATI DEVI AND OTHERS
Appearance:
Shri Rupanshu Agrawal - Advocate for the petitioners.
ORDER
The present petition has been filed by the petitioners being aggrieved
of the order dated 28.2.2025 passed in MJC No.300023/2000, whereby an
application submitted under Order IX Rule 13 CPC by the defendant No.2
has been allowed and the ex-parte decree passed in favour of the
petitioners/plaintiff has been set aside by directing the parties to appear
before the court to decide the matter on merits.
2. It has ben contented by the learned counsel for the petitioners
that the court below has not exercised its jurisdiction as per the principle of
the Order IX Rule 13 of CPC. It is submitted that the respondent was not
prevented from sufficient cause to appear before the Court below. The
respondent used to appear on each and every date before the court below, but
on the date when the suit was decreed ex-parte, on that date the
respondent/defendant was not available deliberately to delay the proceedings,
however the court below has not considered this aspect. It is submitted that
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both the parties had adduced evidence before the court below, however, the
learned court below taking liberal view has allowed the application setting
aside the ex-parte decree. Therefore, the impugned order suffers from
perversity, illegality and jurisdictional error, which requires interference
under Article 227 of the Constitution of India.
3. Heard Learned Counsel for the petitioners and perused the record.
It is evident that the learned counsel for the petitioners has pressed and
challenged the findings arrived at by the court below in Para 20 and 21 of the
impugned order, wherein the court has discussed and observed that the
respondent was prevented from sufficient cause, as the respondent had
appointed a Counsel to appear before the court below and as the Counsel did
no appear before the Court below, the ex-parte decree was passed. It is held
by the Court below that on the assurance of the Counsel, the party was not
present and therefore, the party cannot be prosecuted for the misconduct or
inaction of the Counsel. It is submitted that such approach is not in
consonance with the evidence laid before the court below. However, the
petitioner could not point out from the evidence that such evidence has not
been laid by the parties.
4. It is settled law that if the litigant proves before the court below
that he was prevented by sufficient cause to appear on the specified date
fixed by the court below, then such court can set aside the ex-parte decree
and direct the parties to appear on the date specified to decide the matter on
merits.
5. The Hon'ble Apex Court in the case of Parimal v. Veena (2011) 3
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SCC 545 has held that the test which is to be applied for deciding application
under Order 9 Rule 13 CPC is to see whether the defendant honestly and
sincerely intended to remain present when the suit was called for hearing and
did his best to do so and the sufficient cause is for which the defendant could
not be blamed for his absence. Sufficient cause is a question of fact and the
Court has to exercise its discretion in the varied and special circumstances in
the case at hand. There cannot be a straitjacket formula of universal
application. The extract of the law laid down by the Hon'ble Apex Court is
hereinbelow :
"15. While deciding whether there is sufficient cause or not, the court
must bear in mind the object of doing substantial justice to all the
parties concerned and that the technicalities of the law should not
prevent the court from doing substantial justice and doing away the
illegality perpetuated on the basis of the judgment impugned before it.
(Vide State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94 :
2000 SCC (L&S) 845 : AIR 2000 SC 2306] , Madanlal v. Shyamlal
[(2002) 1 SCC 535 : AIR 2002 SC 100] , Davinder Pal Sehgal v. Partap
Steel Rolling Mills (P) Ltd. [(2002) 3 SCC 156 : AIR 2002 SC 451] ,
Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195 : AIR 2002 SC
1201] , Kaushalya Devi v. Prem Chand [(2005) 10 SCC 127] , Srei
International Finance Ltd. v. Fairgrowth Financial Services Ltd. [(2005)
13 SCC 95] and Reena Sadh v. Anjana Enterprises [(2008) 12 SCC 589
: AIR 2008 SC 2054] .)
16. In order to determine the application under Order 9 Rule 13 CPC,
the test that has to be applied is whether the defendant honestly and
sincerely intended to remain present when the suit was called on for
hearing and did his best to do so. Sufficient cause is thus the cause for
which the defendant could not be blamed for his absence. Therefore,
the applicant must approach the court with a reasonable defence.
Sufficient cause is a question of fact and the court has to exercise its
discretion in the varied and special circumstances in the case at hand.
There cannot be a straitjacket formula of universal application."
6. From the perusal of the findings arrived at by the court below in
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Para 20 and 21, it is found by this Court that statement tendered by the
witness in respect of ill health of the Counsel for the defendant on the date
fixed remained unrebutted and remain unchallenged. It is also held by the
court below that once the power of attorney has been given to the Counsel
and on the assurance of the Counsel, if the party did not appear on the date
fixed and the said fact also remained un-rebutted, and accordingly held that
the respondent/defendant has not deliberately remained absent before the
court below on the date fixed by the court below. It is also held that the
Senior Counsel has instructed the Junior Counsel to appear and apprise the
court below about the ill health of the senior Counsel, when he did not
appear before the court below, the matter has been decreed. It is also opined
that such defence and the plea raised before the court remained unrebutted
and cannot be disbelieved and accordingly allowed the application.
7. It is abundantly clear from the factual analysis of the case and the
principle laid down by the Hon'ble Apex Court reproduced hereinabove that
the respondent/defendant was prevented from sufficient cause from
appearing before the court below on the date specified for which evidence
has been tendered, which remained unrebutted and unchallenged by the
evidence of the petitioners/plaintiff. Direction to the parties to appear before
the court and then decide the matter on merits would not prejudice any
interest or right of the parties. The petitioners would get fair chance to
litigate the matter on merits.
8. Therefore, in the considered opinion of this court, the court below
has not committed any error of law much less the jurisdiction to decide such
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an application and passed an order under challenge. This court in exercise of
the jurisdiction enshrined under Article 227 of the Constitution of India
cannot substitute its own finding passed on the material and cogent
evidence. It is settled law that under the supervisory jurisdiction, this Court
can correct the legal error, which are prima facie apparent and need not to
see from the microscopic eye. Thus, the petition of the petitioners sans merit
is hereby dismissed.
9. Accordingly, the petition stands dismissed.
(DEEPAK KHOT)
JUDGE
nd
