[Cites 3, Cited by 0]
Madhya Pradesh High Court
Mariyam Bi vs Nurullah Sheikh on 5 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:140
1 CR-444-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ALOK AWASTHI
CIVIL REVISION No. 444 of 2025
MARIYAM BI AND OTHERS
Versus
NURULLAH SHEIKH AND OTHERS
Appearance:
Shri Rishiraj Trivedi - learned counsel for the petitioner.
Reserved on : 20.11.2025
Pronounced on : 05.01.2026
ORDER
Heard on the question of admission.
2- The petitioner/plaintiff has filed this petition against the order
dated 22.01.2025 passed by learned Ist District Judge, Sanawad, District
Mandleshwar, West Nimar in RCA No. 6/2021, whereby learned Appellate
Court has dismissed an appeal under Order 43 Rule 1 of the Code of Civil
Procedure, 1908 (in short "CPC") thereby affirmed the order passed by
learned Additional Civil Judge, Class-I, Sanawad, District Mandleshwar
rejecting an application under Order IX Rule 13 of CPC and Section 5 of
Limitation Act.
3- The facts of the case, in short, are as under :
4- The respondent No. 1/plaintiff filed a civil suit for specific
performance of contract against the petitioners/defendants No. 1 and 2 in
respect of agricultural lands situated at Sanawad bearing Survey No.593
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admeasuring 0.567 hectare out of which 0.202 hectare was agreed to be
purchased. The suit property which was in joint ownership of petitioners was
agreed to be sold to the respondent for a consideration of Rs. 50,000/- which
was to be paid to them within a stipulated time. It was pleaded that even after
payment of the whole consideration, the petitioners kept delaying the registry
of the said land in favour of the respondent as a result of which the suit came
to be instituted by the respondent.
5- It was pleaded by the petitioners that the summons were never
delivered upon them and as a result of which they did not contest the suit and
they got to know about passing of the ex-parte order through one Sheikh
Anwar and Sheikh Kamar. In the said order, directions were issued to them
for executing registered sale deed in favour of the respondent. Further, the
petitioners filed an application under Order IX Rule 13 of CPC alongwith an
application under Section 5 of the Limitation Act for setting aside the ex-
parte proceeding.
6- The learned Trial Court dismissed the said applications holding
that the petitioners were duly served summons of the suit and still they
failed to appear before the court, against which, petitioners preferred present
petition.
7- Shri Rishiraj Trivedi, learned counsel for the petitioners submits
that learned Trial Court has committed an error while not taking into
consideration that the application under Order IX rule 13 of CPC came to be
moved by the petitioner as soon as he got the knowledge of decree passed
ex-parte against him. Learned Trial Court has failed to consider that the
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petitioners in their application filed under section 5 of the Limitation act
have stated sufficient cause for condoning the delay occurred in filing the
application. Learned Courts below also failed to consider that the petitioners
have specifically denied his signature in the notice but the learned Court
below has held that the signature on the service report and the application
under Order IX Rule 13 of CPC. There was a dispute regarding the signature,
the Trial Court ought to have made comparison of the signature itself and
rather given the responsibility to examine the same through some
handwriting expert. He also submits that the Trial Court also did not consider
that no sufficient opportunity of hearing came to be afforded to the
petitioners, the petitioners have lost their valuable right to defend and plead
their case. He further submits that learned Trial Court has also not considered
the exhibits P/3 to P/13 which are medical documents of petitioner No. 2
stating his mental health. With these submissions, he prays for allowing the
Civil Revision by setting aside the impugned order.
8- Heard learned counsel for the petitioners and perused the record.
9- From the perusal of the order dated 13.02.2020, it is found that
the summons in Civil Suit No. 28A/13 were duly served upon the
petitioners/defendants, and petitioner Sagir had acknowledged receipt on
behalf of the family residing with him. The petitioners failed to appear before
the Court on the fixed date of hearing. In para No. 13 of cross-examiantion
of petitioner/ Sheikh Sagir, he has stated that he alongwith his mother reside
in the house situated at Azad Road, opposite Water Tank, Sanawad.
Petitioner/Mariyam Bi also stated in para 14 of her cross-examination that
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she alongwith her son reside in a house situated at Azad Road,
Sanawad. Accordingly, the contradictory statements made in the cross-
examination make clear and categorical admissions, which conclusively
prove that Sheikh Sagir and his mother, Maryambi, are residing together in
the same house.
10- So far as the question relating to filing of application belatedly is
concerned, it is apparent from the record that the application dated
16.02.2016 (Exhibit D-24) submitted by Sheikh Sagir to the Sanawad Tehsil
seeking demarcation of Survey No. 593 for execution of a sale deed pursuant
to the order passed in Civil Case No. 28A/13, the application submitted to
the Sanawad Municipality (Exhibit D-31) acknowledging that Nurullah
Sheikh has become the owner of the land admeasuring 21,855 sq.ft. by virtue
of the ex-parte judgment and decree dated 30.06.2014, and the receipt dated
25.12.2014 (Exhibit D-2) showing receipt of the original decree for
submission to the Citizen Bank, clearly establishes that the petitioners had
knowledge of the said judgment and decree well before 02.09.2016. No
rebuttal has been contended against these documents, nor any evidence has
been brought on record to suggest its fabrication. Despite having prior
knowledge of the ex-parte judgment and decree dated 30.06.2014, the
petitioners were not showing their consciousness.
11- Learned First Appellate Court has also affirmed the findings of
the Trial Court by believing that the petitioners were duly served with the
summons and also they were having acknowledgement of the ex-parte
judgment and decree dated 30.06.2014, but, they did not make any effort for
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5 CR-444-2025
their defence, which are being made in present petition.
12- In view of the aforesaid discussion and in my considered
opinion, the findings recorded by Courts below in respect of sufficient cause
of non-appearance and service of summons on the defendants being based on
appreciation of oral and documentary evidence available on record, are pure
findings of facts and are not amenable for interference in the limited scope of
civil revision under Section 115 of CPC.
13- Resultantly, civil revision fails and is hereby dismissed.
14- Misc. application(s), pending if any, shall stand closed.
(ALOK AWASTHI)
JUDGE
Vindesh
