Madhya Pradesh High Court
Scindia Investment Private Ltd. vs M/S Bharat Builders Registered ... on 11 September, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:21361
1 CR-128-2009
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 11th OF SEPTEMBER, 2025
CIVIL REVISION No. 128 of 2009
SCINDIA INVESTMENT PRIVATE LTD.
Versus
M/S BHARAT BUILDERS REGISTERED PARTNERSHIP FIRM
THROUGH ITS PARTNERS GAYA PRASAD (DELETED) (A) SHRI
AND OTHERS
Appearance:
Mr. Prakash Chandra Chandil - Advocate for applicant.
Mr. A.V. Bhardwaj - Advocate for respondents.
ORDER
This civil revision under Section 115 of CPC has been filed against the
order dated 11-9-2009 passed by First Additional District Judge, Gwalior in
MCA No. 10/2007, by which order dated 28-3-2007 passed by IX Civil
Judge, Class I, Gwalior in MCC No. 81/2006 was affirmed, and application
filed by applicant under Order 9 Rule 13 CPC was rejected.
2. The facts necessary for disposal of civil revision, in short, are that
respondents filed a suit against applicant for declaration of title and
permanent injunction. From the order sheets of the trial court, it appears that
suit was filed on 5-11-1998 along with an application for appointment of a
local commissioner. On day one itself, local commissioner was appointed
and notices were directed to be issued, and the case was fixed for 9-11-1998.
On 9-11-1998, the Presiding Officer was on leave, and it was observed by
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2 CR-128-2009
the Reader that the notices have been received back unserved, and it was also
mentioned that the Commissioner had submitted his report, and the case was
fixed for 12-11-1998. On 12-11-1998 also, the presiding officer was on
leave, and accordingly, the case was fixed for 16-11-1998. On 16-11-1998, it
was observed that since the Commissioner had prepared the report after
giving due information to the defendant, therefore, the parties were directed
to maintain the status quo as it was in existence on 9-11-1998, and it was also
directed that fresh process be paid, and the case was fixed for 4-12-1998. On
4-12-1998, the presiding officer was on leave, and it was observed by the
concerning Reader that the service report has not been received, and the case
was fixed for 16-12-1998. On 16-12-1998, it was directed by the trial court
that on payment of fresh process fee, notices be issued to
defendant/applicant, and the case was fixed for 5-1-1999. It appears that
plaintiffs/respondents did not pay the fresh process fee. On 5-1-1999, it was
observed that since the process fee has not been paid, therefore, notices
could not be served, and accordingly, counsel for plaintiffs sought time to
pay fresh process fee and it was observed that in case process fee is paid,
then notice by registered post be issued, and case was fixed for 15-1-1999.
On 15-1-1999, it appears that an application under Order 5 Rule 9 CPC was
filed by plaintiffs, pleading inter alia that on 17-11-1998, plaintiffs had
issued a registered notice to defendant and since 30 days have expired,
therefore, in view of proviso to Order 5 Rule 9(5) CPC, defendant may be
treated as deemed served. On the very same day, the trial court treated the
defendant as deemed served and proceeded ex parte, and ultimately, on 15-3-
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3 CR-128-2009
1999, an ex parte decree was passed. Thereafter, applicant filed an
application under Order 9 Rule 13 CPC, which was rejected by the trial court
by order dated 18-03-2009.
3. Being aggrieved by the order passed by the trial Court, applicant
preferred a miscellaneous civil appeal, which too was dismissed by the
appellate court by order dated 11-09-2009, passed in MCA No. 10/2007.
4. Challenging the orders passed by the courts below, it is submitted
by counsel for applicant that it is clear from the aforesaid order sheets that on
16-12-1998, trial court had directed the plaintiffs to pay fresh process fee,
but admittedly, fresh process fee was never paid. This fact was taken note of
by the trial court in its order dated 5-1-1999, and on the said date also,
counsel for plaintiffs had agreed to pay the fresh process fee. However, on
the next date, i.e., 15-1-1999, an application under Order 5 Rule 9(5) proviso
of CPC was filed by pleading inter alia that plaintiff had already sent a notice
by registered mode on 17-11-1998, and since 30 days have expired,
therefore, defendant be treated as deemed served. It is submitted that even if
any process fee was paid for service of notice by registered mode on 17-11-
1998, still that process fee had lost its efficacy in light of the order dated 16-
12-1998, and therefore, the trial court should not have proceeded further
against applicant/defendant under Order 5 Rule 9(5) proviso of CPC.
5. Per contra, it is submitted by counsel for respondents/plaintiffs that
since the service report of notice issued by registered post on 17-11-1998
was not received back, therefore, trial court did not commit any mistake by
treating the defendant/applicant as deemed served. It is further submitted that
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4 CR-128-2009
even in the proceedings recorded under Order 9 Rule 13 CPC, it was
admitted by the witness of the applicant that he had never come to Gwalior
and had never executed an affidavit in support of application filed under
Order 9 Rule 13 CPC, which has been taken note of by the appellate court,
therefore, even the application filed under Order 9 Rule 13 CPC was not
maintainable. It is further submitted that application filed under Order 9 Rule
13 CPC was rightly held to be barred by time.
6. Heard learned counsel for parties.
7. This court has already mentioned the various order sheets recorded
by the trial court. It is clear that by order dated 16-12-1998, the trial court
had directed the plaintiffs/applicants to pay fresh process fee, but that was
not done. Accordingly, on 5-1-1999, once again, trial court directed the
plaintiffs to pay the process fee by registered mode. Even that was not done,
and on 15-1-1999, an application under Order 5 Rule 9(5) proviso of CPC
was filed for treating the defendant as deemed served on the basis of a
registered letter sent on 17-11-1998. Plaintiffs had filed a copy of the postal
receipt to substantiate that a registered letter was sent on 17-11-1998, but
how the plaintiffs came in possession of the said receipt could not be
explained by counsel for plaintiffs. Whenever a notice is issued by the court,
then party is merely required to submit the envelope with proper postal
stamps along with a copy of the notice, and notice is dispatched by the court,
therefore, postal receipt should have been in the record of the court and not
with plaintiffs.
8. Be that whatever it may.
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5 CR-128-2009
9. Once the trial court, by order dated 16-12-1998, had directed the
plaintiffs to pay fresh process fee, then whatever process fees were paid on
earlier occasion had lost their efficacy. Therefore, the trial court should not
have relied upon the registered letter which was sent to defendant on 17-11-
1998, and should not have treated the defendant as deemed served.
10. So far as the question of limitation is concerned, said contention
was not accepted by the trial court on the ground that date of knowledge
could not be proved by defendant because the letter on the basis of which
defendant had claimed that they had derived the knowledge of the ex parte
decree was never produced.
11. Once the trial Court has committed an illegality by treating the
defendant as deemed served, then it is sufficient to hold that when
applicant/defendant was not aware of the ex parte decree, then the Court
below should have accepted the verbal submission of the defendant that he
had got the knowledge of ex parte decree only after he received a letter from
plaintiffs.
12. It appears that the courts below have given undue importance to
the statement of witness of the applicant to the effect that he never came to
Gwalior and never executed any affidavit, and he does not know the notary.
It is true that an affidavit is not a waste piece of paper and is a document
which contains the solemn declaration by the deponent. It appears that some
mischief was also played by defendant/applicant in filing an affidavit under
Order 9 Rule 13 CPC. Although the mischief, which was played by
defendant, cannot be ignored, but in the light of the fact that the trial court
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6 CR-128-2009
itself had committed a material illegality by treating the defendant as deemed
served, this court is of considered opinion that the mischief played by
defendant in filing an affidavit, which was not executed by deponent, can be
ignored. However, this mischief cannot be allowed to go unnoticed.
13. Under these circumstances, this Court is of considered opinion that
the courts below should have adopted a liberal view and should have allowed
the application filed under Order 9 Rule 13 CPC.
14. Accordingly, order dated 11-9-2009 passed by First Additional
District Judge, Gwalior in MCA No. 10/2007, as well as order dated 28-3-
2007 passed by IX Civil Judge, Class I, Gwalior in MCC No. 81/2006, are
hereby set aside. Application filed by applicant/defendant under Order 9
Rule 13 CPC is hereby allowed, subject to deposit of cost of Rs. 15,000/-
before the trial court within a period of one month from the date of
appearance.
15. This court has consciously imposed the cost of Rs. 15,000/- for the
mischief which was played by applicant/defendant while filing an application
under Order 9 Rule 13 CPC, along with an affidavit of the deponent, which
was never executed by deponent.
16. The ex parte judgment and decree dated 15-3-1999 passed by XI
Civil Judge, Class II, Gwalior in Civil Suit No. 51A/1998 is hereby set aside,
and civil suit filed by plaintiffs/respondents is hereby restored.
17. Parties are directed to appear before the trial court on 17-10-2025.
No fresh notice shall be required, and the date given by this order shall be
treated as sufficient notice to the parties for their appearance before the trial
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7 CR-128-2009
court.
18. With aforesaid observations, this civil revision is disposed of.
(G. S. AHLUWALIA)
JUDGE
AKS
