Supreme Court Sets Aside High Court Order Reviving Ex‑Parte Decree; Upholds Appellate Cancelation of Review

A bench of Justice Dipankar Datta and Justice Manmohan heard an appeal against a May 1, 2024 judgment of the Allahabad High Court that had allowed a writ petition under Article 227, condoned long delay, recalled an order dismissing the petition as infructuous, and set aside an ex‑parte decree entered in 1991 in a title suit concerning a registered sale deed. The appeal raised the singular question whether the High Court was justified on facts and in law to allow the writ petition and restore the proceedings as it did.

The Supreme Court allowed the civil appeal, held that the High Court erred in its approach and set aside the impugned order dated May 1, 2024. The Court upheld the appellate order dated October 8, 2002 which had dismissed the application under Order IX Rule 13 CPC and thereby sustained the ex‑parte decree of August 17, 1991. The Court noted that the High Court proceeded as if exercising appellate jurisdiction and did not sufficiently examine the sufficiency of cause shown by the defendants for their prolonged non‑appearance. The Court, in its reasoning, observed: "Pleadings, either in a plaint or a written statement, constitute the plinth on which the respective claims and defence of the parties to a civil suit rest. What a pleading ought to contain is provided in Order VI Rule 2, CPC. Only material facts, on which the party pleading relies for his claim or defence to succeed, have to be stated without the evidence by which the pleading is to be proved. Once the pleadings are complete but the defendant is set ex parte, and such order has attained finality, the defendant’s rights suffer a curtailment. He cannot produce evidence in defence and hence statements, which are in the nature of factual assertions, cannot be proved by leading evidence. Generally speaking, the limited right that the defendant, set ex parte, would have is confined to cross‑examining the plaintiff’s witnesses... However, if the defendant raises an issue on law which is traceable in the written statement ... the court may frame an issue of law and decide the same." The Court further quoted the High Court's own earlier observations recorded in the impugned order to demonstrate the flawed approach, including the High Court judge's remark: "I have gone through the ex parte judgment and decree ... and find that the trial court has simply proceeded to record statement of plaintiff and had decreed the suit."

Background The dispute arose from a civil suit filed on May 22, 1987 by the appellant seeking cancellation of a registered sale deed dated September 5, 1984 relating to approximately 6 bigha 5 biswa of land. The appellant alleged fraud. The defendants filed a written statement on September 18, 1987; issues were framed on January 18, 1988 including jurisdiction and whether the suit was barred by Section 34 of the Specific Relief Act. Defendants repeatedly sought adjournments; after numerous absences the trial court set them ex‑parte on April 24, 1991. Evidence of the plaintiff was recorded on July 2, 1991 and the suit was decreed ex‑parte on August 17, 1991.

The defendants filed an application under Order IX Rule 13 CPC with a condonation of delay plea under Section 5 of the Limitation Act. The trial court rejected condonation on November 3, 1997 but a revision allowed condonation and directed disposal on merits on April 19, 1999. The trial court thereafter dismissed the Order IX Rule 13 application on July 23, 2002; an appellate court on October 8, 2002 dismissed the miscellaneous appeal, finding insufficient cause for non‑appearance given prior adjournments and timing of events. The defendants then filed a writ petition under Article 227; the High Court on May 1, 2024 condoned a further seven‑year delay in seeking recall of an earlier December 1, 2011 order that had dismissed the writ as infructuous, allowed amendment, recalled the December 1, 2011 order, and set aside the ex‑parte decree while directing framing of issues and expedited disposal.

On appeal, the Supreme Court found that the High Court had not adequately considered the defendants' cause for absence as examined by the trial and appellate courts, and had engaged in substantive re‑examination of the merits as if on appeal. The Court recorded that the defendants had repeatedly sought adjournments before being set ex‑parte, had not produced medical witnesses or other evidence to substantiate the asserted illness, and had not explained why co‑defendants had not defended the suit earlier. The Supreme Court concluded that the High Court's order was based on irrelevant and immaterial observations and therefore was indefensible, set aside the impugned High Court order, upheld the appellate order dated October 8, 2002, dismissed the respondents’ writ petition in the High Court and allowed the civil appeal.

Case Details: Case No.: Civil Appeal No. 5319 of 2025 (arising out of SLP(C) 20978 of 2024) Case Title: Kanchhu v. Prakash Chand & Ors. Appearances: For the Petitioner(s): Partha Sakha Datta, Senior Counsel For the Respondent(s): Sukumar Pattjoshi, Senior Counsel