Unknown vs Madan Singh And Others
2025 Latest Caselaw 5535 UK

Uttarakhand High Court

Unknown vs Madan Singh And Others on 17 November, 2025

Author: Pankaj Purohit

Bench: Pankaj Purohit

                                                      2025:UHC:10282



HIGH COURT OF UTTARAKHAND AT NAINITAL
       Writ Petition Misc. Single No.2366 of 2019
                      17th November, 2025

Diwan Singh Diyoliya and another                 ...........Petitioners

                               Versus

Madan Singh and others                        ..........Respondents
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Presence:-
Mr. Sanjay Bhatt, Advocate for the petitioner.
Mr. T.C. Pandey, Advocate for the respondent.
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Hon'ble Pankaj Purohit, J.

This writ petition has been filed under Article 227 of the Constitution of India, whereby the petitioners have to put to challenge the judgment and order dated 22.06.2019, passed by learned Ist Additional District Judge, Nainital, in Civil Appeal No.33 of 20218, Madan Singh Vs. Deewan Singh Diyoliya and another, and consequently the appeal filed by the defendant/appellant may be dismissed.

2. The brief facts of the case are that the petitioners are Bhumidhar of agricultural land recorded in revenue records as Khata No.31 ad-measuring 28 Nali 14 Muthi, and Khata No.38 ad-measuring 29 Nali 05 Muthi, situated in Village Anouthi, Patti-Gahna, Tehsil and District Nainital. They have been in long and settled possession of the aforesaid land. The respondent, along with one Mr. Nathu Singh, attempted to forcibly take possession of the said land despite having no lawful claim. Consequently, the petitioners instituted Civil Suit No.29 of 2009 before the court of the learned Civil Judge (J.D.), Nainital, seeking permanent injunction. The suit

2025:UHC:10282 proceeded, and owing to non-appearance and lack of due diligence by the defendants, it was decreed ex parte on 25.06.2013. Thereafter, defendant no.2 filed an application under Order IX Rule 13 of C.P.C. along with Misc. Case No.06 of 2014, seeking to set aside the ex parte decree, on the sole ground that the counsel engaged by him had died during pendency of the suit and he was not informed of such demise. The petitioners filed objections, stating that the defendants were fully aware of the death of their counsel as well as the proceedings of the suit, and despite that, they continued to defend the case through other engaged counsel. The trial court considered the objections and rejected the said application along with the delay condonation plea filed under Section 5 of the Limitation Act vide order dated 12.03.2015. Aggrieved thereby, defendant no.1 preferred Civil Revision No.15 of 2015, which was allowed by the Revisional Court vide order dated 09.02.2016, remitting the matter back to the trial court for fresh consideration. After remand, the trial court heard the matter and rejected application No.4C again on 12.08.2016 with costs of ₹1,000/-. A subsequent revision petition filed by the petitioners was also rejected on 12.03.2018.

3. The petitioners then filed Writ Petition (M/S) No. 1058 of 2018 before this Court, which is pending. Meanwhile, the defendants again filed application No. 6C under Order IX Rule 13 of C.P.C., which was rejected by the trial court on 28.06.2018, holding that the defendants were fully aware of the proceedings and had deliberately abstained from contesting the suit. However, in appeal (Civil Appeal No.33 of 2018), the learned Ist Additional District Judge, Nainital, allowed the appeal vide order dated 22.06.2019, condoning the delay and

2025:UHC:10282 setting aside the ex parte decree. This appellate order is now challenged before this Court.

4. The learned counsel for the petitioners submitted that the trial court had rightly rejected the defendant's application under Order IX Rule 13 of C.P.C. on the ground that despite the death of one counsel engaged by the defendants, other counsel continued to appear in the matter, and the defendants were always aware of the pendency and proceedings of the suit. He submitted that they actively participated in the trial, sought adjournments on several occasions, and were represented through different advocates, even after the death of the original counsel.

5. The learned counsel for the petitioners argued that the appellate court committed grave illegality by completely ignoring the fact that at the stage of framing of issues, the defendants were duly represented by counsel, and one of the counsel was present even on 31.07.2012 when the issues were finalized. Their subsequent non-appearance was deliberate and cannot be treated as sufficient cause under Order IX Rule 13 of C.P.C. It is further contended that mere condonation of delay does not automatically result in setting aside the ex parte decree unless the defendant successfully demonstrates "sufficient cause" for non-appearance, which is a mandatory condition precedent.

6. The learned counsel for the petitioners also argued that the appellate court misdirected itself in law by treating the condonation of delay as a natural consequence for allowing the application for setting aside ex parte decree, overlooking Section 5 of the Limitation Act and the requirement under Order IX Rule 13 of

2025:UHC:10282 C.P.C. that sufficient cause must be shown. He further submitted that the appellate court passed a non- speaking, illegal, and perverse order that failed to appreciate the deliberate conduct of the defendants. Furthermore he submitted that allowing the application under Order IX Rule 13 of C.P.C. merely on the ground of condonation of delay would open the floodgates for unscrupulous litigants to evade decrees by taking false and afterthought pleas, especially when they were fully aware of the proceedings and yet abstained from contesting.

7. The learned counsel for the respondents submitted that the earlier WPMS No.1058 of 2018, filed by the petitioners against the order dated 09.02.2016 passed by the learned Additional District Judge, Nainital in Civil Revision No.15 of 2015, was dismissed by this Court as infructuous on 27.08.2022. It is further submitted that that after the matter was remanded by the Revisional Court in the year 2016 for fresh adjudication, the trial court allowed the delay condonation application under Section 5 of the Limitation Act in Misc. Case No.06 of 2014 filed under Order IX Rule 13 of C.P.C. According to the respondents, the petitioners suppressed this material fact and are attempting to reopen settled issues.

8. The learned counsel for the respondents denied the petitioners' assertion of exclusive possession over the disputed agricultural land and contended instead that Late Madan Singh and Shri Nathu Singh, and subsequently their legal heirs, have been in continuous possession of the property for more than fifty years and have accrued bhumidhari rights over the same. They say that they have constructed residential

2025:UHC:10282 structures on the land and have been in peaceful and uninterrupted possession. Thus, the allegation that the respondents forcibly attempted to take possession is denied as false and frivolous. It is also submitted that the petitioners, through an ex parte decree, are attempting to dispossess the respondents without any lawful right.

9. It is further submitted by the learned counsel for the respondents that the courts have consistently held that Order IX Rule 13 of C.P.C. is intended to prevent injustice caused by ex parte decrees and to provide an opportunity to a party to contest on merits. The learned counsel for the respondents assert that the appellate court rightly set aside the ex parte decree, emphasizing that once delay in filing the application was condoned, the natural consequence was to hear the case on merits. He further argues that the petitioners stand to lose nothing if the matter is adjudicated on merits whereas the respondents would suffer grave injustice if shut out on technical grounds.

10. Having heard the learned counsels for the parties and after perusal of the material placed on record, the primary question before this Court is whether the learned Ist Additional District Judge, Nainital, while allowing the appeal and setting aside the ex parte decree, committed any error of jurisdiction, perversity, or illegality warranting interference under Article 227 of the Constitution. It is admitted that the defendants were participating in the suit initially, written statement was filed, and issues were framed. It is also undisputed that their original counsel, Shri D.S. Mer, died during the pendency of the suit. The defendants have contended that they were not aware of such demise and thus could not appear on subsequent dates, which led to the ex

2025:UHC:10282 parte decree. Their application under Order IX Rule 13 of C.P.C. was accompanied by an application under Section 5 of the Limitation Act, explaining the cause for their absence. The trial court rejected the application, observing that junior counsel occasionally appeared even after the death of Shri Mer, implying knowledge of proceedings. However, the appellate court found that such appearances by junior advocates were neither based on instructions from the defendants nor sufficient to impute knowledge of proceedings. It held that the defendants' absence could not be treated as intentional or negligent. The appellate court rightly applied the principle that the provision under Order IX Rule 13 of C.P.C. is remedial and must be construed liberally to avoid injustice and ensure adjudication on merits rather than technical defaults. The plea of the petitioners that condonation of delay under Section 5 of the Limitation Act does not automatically entitle the defendants to recall of decree is legally correct. However, in the present case, the appellate court did not merely condone delay, it found sufficient cause for non-appearance and a bona fide explanation supported by circumstances. Its reasoning cannot be termed perverse or ignoring settled legal standards.

11. It is well settled that interference under Article 227 of the Constitution of India is restricted to cases of grave jurisdictional error or perversity. The appellate court considered relevant facts, applied correct principles of Order IX Rule 13 of C.P.C., and passed a reasoned order restoring the suit to be decided on merits. No manifest illegality, arbitrary exercise of jurisdiction, or miscarriage of justice is shown. On the contrary, denial of a hearing to the defendants in a long-standing

2025:UHC:10282 property dispute, based solely on technicalities, would amount to injustice. Furthermore, the earlier writ petition WPMS No.1058 of 2018 filed by the petitioners challenging the previous revisional order has already been dismissed by this Court as infructuous. The present petition is essentially an attempt to re-agitate settled issues.

12. In the considered view of this Court, the impugned order dated 22.06.2019 passed by the learned First Additional District Judge, Nainital, does not suffer from any legal infirmity, perversity, or jurisdictional error warranting interference. The order upholds the broader principle that matters should ordinarily be adjudicated on merits rather than by default.

13. Accordingly, the writ petition is dismissed.

(Pankaj Purohit, J.) 17.11.2025 SK