C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 Reserved On : 30/06/2026 Pronounced On : 10/07/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2986 of 2021 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2021 In R/FIRST APPEAL NO. 2986 of 2021 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE J. C. DOSHI ========================================================== Approved for Reporting Yes No ========================================================== SWASTI TAPA PATRA W/O CHANDRA SHEKHAR PATRA Versus MANSUKHBHAI AAMBABHAI TALPARA ========================================================== Appearance: MR SM KIKANI for MR MS PADALIYA(7406) for the Appellant MS MEGHA JANI, SR. ADVOCATE with MR MEET D PANSURIA(10170) for the Respondent ========================================================== CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI CAV JUDGMENT 1. The present first appeal has been filed by the appellant (original defendant) under Section 96 of the Code of Civil Procedure, 1908 (in short “the Code”) against the judgment and decree dated 30.4.2021 passed in Special Civil Suit No. 28 of 2019 by the learned Principal Senior Civil Judge, Jamnagar, by which the plaintiff's suit for recovery of money C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 was allowed and the defendant was held liable to pay Rs. 56,00,000/- with interest at the rate of 18% per annum. 1.1 Subsequently, the learned trial Court on discovering typographical error rectified the judgment and decree under Section 152 of the Code by passing a fresh order holding that the plaintiff is entitled to recover Rs. 56,00,000/- with interest at 6% per annum from the date of the suit till realization, thereby correcting the interest rate from 18% to 6%. 2. For the sake of convenience and brevity, parties are referred to as per their original status before the learned trial Court. 3. Brief facts of the case are as under:- 3.1 The plaintiff is engaged in the business of selling brass parts and SS hardware materials at Jamnagar since many years. The defendant had purchased materials worth Rs.62,86,250/- under invoice Nos.31,38,39,42,46 respectively during the period from 24.01.17 to 21.03.17 against which the defendant has made payment of Rs.20,80,000/- and an amount of Rs.42,06,250/- remains due and payable by the defendant to the plaintiff. 3.2 That despite several efforts to recover the said amount from the defendant, whereby, the defendant has been giving C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 false excuses and avoiding payment legal dues, remains failed. The cheques issued by the defendant in lieu of the payment have been dishonoured on their presentation to the bankers and have returned unpaid. 3.3 The plaintiff filed the suit to recover the outstanding amount of Rs. 42,06,250/-, being the balance due after deducting Rs. 20,80,000/- already paid by the appellant/defendant, along with interest from the date of the suit till realization. 3.4 The suit was called for hearing on several dates. Despite due service of summons upon the defendant, the defendant did not file a written statement and did not participate in the suit proceedings. The defendant's advocate chose not to remain present. Consequently, the learned trial court proceeded to hear and decide the suit ex parte, resulting in the impugned judgment and decree in favour of the plaintiff. 3.5 Being aggrieved by the judgment and decree as passed, the defendant has preferred the present first appeal. 4. Heard learned counsel Mr. SM Kikani for learned counsel Mr. MS Padaliya appearing for the appellant / defendant and learned Senior counsel Ms. Megha Jani assisted by learned counsel Mr. Meet Pansuriya appearing for the respondent / plaintiff. C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 5. Learned counsel Mr. Kikani made two fold submissions. He would further submit that the suit ran ex parte against the defendant, as the advocate representing the defendant did not file a written statement and did not participate in the suit proceedings, ultimately leading the trial court to pass an ex parte decree. The defendant did not get opportunity to put his defence due to negligence of the lawyer. Therefore, learned counsel Mr. Kikani would submit that under the principle of audi alteram partem, the defendant prayed that he be given one more opportunity to file a written statement and lead his defence, to demonstrate that the materials supplied by the plaintiff were of inferior quality and that no amount is due against the defendant. 5.1 Learned counsel Mr. Kikani would further submit that on going through the impugned judgment, it appears that the learned trial court appears to have not applied its mind. He would further submit that the plaintiff's case was that he was selling brass parts and hardware materials to the defendant and that Rs. 42,06,250/- remained due. However, in paragraphs 10, 11 and 12 of the impugned judgment, the trial court recorded findings that the defendant purchased potatoes from the plaintiff worth Rs. 4,76,065/- and that the plaintiff company was entitled to payment towards telephonic services and connections (Rs. 27,535/-). These findings bear no relation whatsoever to the plaintiff's actual case. He would further submit that in paragraph 11 of the judgment, there is a C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 finding granting interest at 6% per annum, while the operative part of the same judgment indicates interest at 18% per annum. This inconsistency further demonstrates total non- application of mind and drew logical connection that the judgment impugned in appeal is passed in absence of conscious consideration inasmuch as mechanical disposal of the suit. 5.2 On the basis of the above arguments, learned counsel Mr. Kikani submitted that the learned trial court had either copy-pasted a judgment from another matter or had clubbed two different judgments together, demonstrating a non- deliberate approach and non-application of mind. 5.3 In support of his argument, learned counsel Mr. Kikani placed reliance on the judgment of the Supreme Court in case of G. Ratna Raj (Dead by LRs) v. Muthukumarasamy, AIR 2019 SC (Suppl) 241 and submitted that on conjoint reading of Order 9 Rule 13, Order 9 Rule 6, Order 17 Rule 2 and Order 17 Rule 3 of the Code, the Hon’ble Apex Court held that when the suit was called for on hearing, the defendants were absent despite service of summons and accordingly, the learned trial Court passed decree, such a decree was ex parte decree and can be set aside under Order 9 Rule 13 of the Code. He would therefore, submit that same ratio would be applied to the present case. 5.4 Upon above submissions, learned counsel Mr. Kikani C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 prays that present First Appeal be allowed, the impugned judgment and decree be set aside and the matter be remanded back for fresh consideration with granting liberty to the defendant to file a written statement and lead his defence. 6. Per contra, learned Senior counsel Ms. Megha Jani assisted by learned counsel Mr. Pansuriya for the plaintiff would submit that the defendant cannot, in an appeal filed under Section 96 of the Code, argue as if he was an applicant seeking to set aside an ex parte decree under Order 9 Rule 13 of the Code. She would further submit that the judgment of the Hon’ble Apex Court relied upon by the learned counsel Mr. Kikani pertains to the setting aside of an ex parte decree, and the ratio thereof cannot be applied in an appeal filed by the defendant under Section 96 of the Code. She submits that criteria appearing in application to set aside ex parte decree under O 9 R 13 of the Code is altogether different and cannot be brought into while hearing First Appeal u/s 96 of the Code. 6.1 Learned counsel Ms. Megha Jani accordingly prayed that the appeal be dismissed. She would further submit that the typographical error crept in the impugned judgment and decree has been rectified by the learned trial Court u/s 152 of the Code and therefore, the contention of learned counsel Mr. Kikani of non-application of mind has no substance. She would further submit that the plaintiff, in a suit seeking recovery of Rs,42,06,250/- for selling brass parts and SS hardware materials to the defendant, has produced more than C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 sufficient evidence including the cheque issued by the defendant at Exh.26 to 34 and the compared copy of ledger and proved his case. She would further submit that in a cheque return case, the defendant has been convicted by the competent Court and presently, appeal against conviction is pending before the learned Sessions Court. It is in this argument, learned Senior counsel Ms. Jani submitted that the plaintiff in the suit, which ran ex parte, has discharged his burden to prove the case against the defendant. The decree though passed ex parte, is valid and effective decree. She would further submit that the defendant has failed to show any circumstances to set aside the decree. 6.2 Upon above submissions, learned Senior counsel Ms. Megha Jani prays to dismiss the First Appeal. 7. I have heard learned counsels for respective parties and also perused the impugned judgment and decree as well as R & P of the suit. 8. The questions, which fall for consideration of this Court, are that whether the defendant makes out a case that the impugned judgment and decree, having been passed in the absence of the defendant, deserves to be set aside only on the ground that it is ex parte decree? and Whether the learned trial court passed the impugned judgment and decree without application of mind? What order? Page 7 of 19 C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 9. The emphasize of the argument of learned counsel Mr. Kikani is that since the impugned judgment and decree is passed in absence of the defendant, it being an ex parte decree, the impugned judgment and decree is required to be set aside and the defendant be given one chance to defend his case and for that, heavy reliance is placed upon the judgment of the Hon’ble Apex Court in case of G. Ratna Raj (supra). 10. On the factual aspect, it is undeniable that the defendant, chose not to remain present in the suit proceedings when the suit was called for hearing, despite due service of summons. Consequently, the suit proceeded ex parte against the defendant and culminated in the impugned judgment and decree. 11. While evaluating the argument of ex parte decree, this Court considered the relevant provisions of Order 9 of the Code governing the appearance of parties and the consequences of non-appearance. Order 9 Rule 6 provides the procedure when only the plaintiff appears and the defendant does not appear. Order 9 Rule 11 provides the procedure in case of non-attendance of one or more of several defendants. Order 9 Rule 7 provides the procedure when a defendant appears on the date of adjourned hearing and seeks to explain his previous non-appearance. Order 9 Rule 13 provides the procedure for setting aside an ex parte decree against a defendant. Simultaneously, other provisions of the Code is also needed to go through. Order 15 Rule 2 provides that if C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 one of several defendants is not at issue, the court may at once proceed to judgment as against such defendant. Order 17 Rule 2 provides that if a party fails to appear on the day fixed, the matter relates back to Order 9 for disposal of the suit. Order 17 Rule 3 provides that the court may proceed to decide the suit notwithstanding a party's failure to produce evidence, cause attendance of witnesses, or perform any other act necessary to further the progress of the suit. 12. Apposite to note that in order to set aside an ex parte decree under Order 9 Rule 13 of the Code, an applicant must satisfy one of the following two grounds: (i) that the summons was not duly served upon him; or (ii) that he was prevented by sufficient cause from appearing in the suit when it was called for hearing. 13. The Hon’ble Apex Court in case of Sangram Singh Versus Election Tribunal, Kotah, AIR 1955 SC 425 authored by Hon’ble Mr. Justice Vivian Bose, (as His Lordship then was) has examined interplay of O 9 R 6 r/w O 17 R 2. In para 24 to 33, the Hon’ble Apex Court held thus:- “24. Rule 1 of O. 9 starts by saying " On the day fixed in the summons' for the defendant to appear' and answer ... ... " and the rest of the rules in that Order are consequential on that. This is emphasised by the use of the word "postponement" in R. 6 (1) (c), of "adjournment" in R. 7 and of "adjournment" in R. I. Therefore, we reach the position that O, 9, C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 R. 6 (1) (a), which, is the rule relied on, is confined to the first hearing of the suit and does not 'per se' apply to "subsequent hearings- 25. Now to analyse R. 6 and examine its bearing on the first hearing. When the plaintiff appears and the defendant does not appear when the suit is called on for hearing, if it is proved that the summons was duly served "(a) ... the Court may proceed 'ex-parte' " The whole question is, what do these words mean- Judicial opinion is sharply divided about this. On the one side is the view propounded by Wallace, J., in that 'ex parte' merely means in the absence of the other party, and on the other side is the view of O'Sullivan J., in that it means that the Court is at liberty to proceed without the defendant till the termination of the proceedings unless the defendant shows good cause for his non-appearance. The remaining decisions, and there are many of them, take one or the other of those two views. 26. In our opinion, Wallace J., and the other Judges who adopt the same line of thought are right. As we have already observed, our laws of procedure are based on the principle that, as far as possible, no proceeding in a Court of law should be conducted to the detriment of a person in his absence. There are of course exceptions, and this is one of them. When the defendant has been served and has been afforded an opportunity of appealing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an 'ex parte' order. Of course the fact that it is proceeding 'ex parte' will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sense of an 'ex parte' decree or C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 other 'ex parte' order which the Court is authorised to make. All that R. 6 (1) (a) does is to remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority namely to proceed in the absence of one of the parties. The contrast in language between R. 7 and R. 13 emphasises this. 27. Now, as we have seen, the first hearing is either for the settlement of issued or for final hearing. If it is only for the settlement of issue, then the Court cannot pass an 'ex parte' decree on that date because of the proviso to O. 15 R. 3 (1) which provides that that can only be done when "the parties or their pleaders are present and none of them objects" On the other hand, if it is for final hearing an 'ex parte' decree can be passed, and if it is passed, then O. 9, R. 13 comes into play and before the decree is set aside the Court is required to 'make an order to set it aside'. Contrast this with R. 7 which does not require the setting aside of what is commonly, though erroneously, known as "the 'ex parte' order." No order is contemplated by the Code, and therefore no order to set aside the order is contemplated either. But a decree is a command or order of the court and so can only be set aside by another order made and recorded with due formality. 28. Then comes R. 7 which provides that if at 'an adjourned ' the defendant appears and shows good cause for his "'previous' non-appearance", he can be heard in answer to the suit. "as if he had a on the day fixed for his appearance." This cannot be read to mean, as it has been by some learned Judges, that he cannot be allowed to appear at all if, he does not show good cause. All it means is that he cannot be relegated to the position be would have occupied if he had appeared. Page 11 of 19 C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 29. We turn next to the 'adjourned' hearing That is dealt with in O. 17, R. 1(1) empowers the Court to adjourn the bearing and whenever it does so it must fix a day "for the further hearing of the suit", except that once the hearing of the evidence has begun it must go on from day to day till all the witnesses in attendance have been examined unless the Court considers, for reasons to be recorded in writing, that a further adjournment is necessary. Then follows R. 2 - "Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by O. 9 or make such other order as it thinks fit". 30. Now R. 2 only applies when one or both of the parties do not appear 'on the day fixed' for the adjourned hearing'. In that event, the Court is thrown back to O. 9 with the additional power to make "such order as it thinks fit". When it goes back to O. 9 it finds that it is again empowered to proceed 'ex parte' on the adjourned hearing in the same way as it did, or could have done, if one or other of the parties had not appeared at the first hearing, that is to say, the right to proceed 'ex parte' is a right which accrues from day to day because at each adjourned hearing the Court is thrown back to O. 9, R. 6. It is not a mortgaging of the future but only applies to the particular hearing at which a party was afforded the chance to appear and did not avail himself of it. Therefore, if a party does appear on "the day to which the hearing of the suit is adjourned", he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. Page 12 of 19 C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 31. But though he has the right to appear at an adjourned hearing, he has no right to set back the hands of the clock. Order 9, R. 7 makes that clear. Therefore, unless he can show good cause, he must accept all that has gone before and be content to proceed from the stage at which he comes in. But what exactly does that import- To determine that it will be necessary to hark back to the first hearing. 32. We have already Seen that when a summons is issued to the defendant it must state whether the hearing is for the settlement of issues only or for the final disposal of the suit (O. 5, R. 5). In either event, O. 8, R. 1 comes into play and if the defendant does not present a written statement of his defence, the Court can insist that he shall; and if, on being required to do so, he fails to comply "the Court may pronounce Judgement against him, or make such order in relation to the suit as it thinks fit." (O. 8, R. 10). This invests the Court with the widest possible discretion and enables it to see that justice is done to 'both' sides; and also to witnesses if they are present; a matter on which we shall deal later. 33. We have seen that if the defendant does not appear at the first hearing, the Court can proceed 'ex parte', which means that it can proceed without a written statement; and O. 9, R. 7 makes it clear that unless good cause is shown the defendant cannot be relegated to the position that he would have occupied if he had appeared. That means that he cannot put in a written statement unless be is allowed to do so, and if the case is one in which the court considers a written statement should have been put in, the consequences entailed by O. 8, R. 10 must be suffered. What those consequences should be in a given case is for the Court in the exercise of its judicial discretion, C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 to determine. No hard and fast rule can be laid down. In some cases an order awarding costs to the plaintiff would meet the ends of justice; an adjournment can be granted or a written statement can be considered on the spot and issues framed. In other cases, the ends of justice may call for more drastic action.” 14. In case of Vijay Singh Versus Shanti Devi, 2017 (8) SCC 837, the Hon’ble Apex Court, in para 12, referred to O 9 R 6 of the Code, more particularly, clause (a) to held that when summons are duly served and the defendant does not put in appearance, the court may make an order that the suit would be heard ex parte and passing of such decree in view of the aforesaid provisions of law, is valid and legal decree. Para 12 reads as under:- “12. We are only concerned with clause (a), which provides that if summons are duly served and the defendant does not put in appearance, the court may make an order that the suit would be heard ex parte. In this case, this was the procedure followed and an ex parte decree was passed. There is no manner of doubt that an ex parte decree is also a valid decree. It has the same force as a decree which is passed on contest. As long as the ex parte decree is not recalled or set aside, it is legal and binding upon the parties.” 15. In Bhanu Kumar Jain Versus Archana Kumar, 2005 (1) SCC 787, in para 38, the Hon’ble Apex Court held as under:- “38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 correctness or otherwise of the order posting the suit for ex-parte hearing by the trial court and/ or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Sec. 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Choudhary that the 'Explanation' appended to Or. 9 R. 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury (supra), P. Kiran Kumar (supra) and Shyam Sundar Sarma V/s. Pannalal Jaiswal and Others.” 16. As regards the first ground, it is not the defendant's case that no summons was served upon him. In fact, it is a case where the defendant appeared before the court, sought adjournments for filing of his written statement, and then subsequently chose not to appear. Thereby, the first ground for setting aside ex parte decree is not available to the defendant. 17. As regards the second ground, the learned counsel for the defendant failed to place on record a single circumstance sufficient to explain or justify the defendant's absence from the suit proceedings when the suit was called for hearing. 18. During the course of hearing of the appeal, this Court queried the learned counsel for the defendant as to whether the defendant is ready and willing to deposit the principal C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 amount decreed by the learned trial court into the court, with a view to considering setting aside the ex parte decree and remanding the matter for fresh consideration, and thereby permitting the defendant to lead evidence in his defence. The learned counsel for the defendant bluntly declined and flatly submitted that his client is not ready and willing to deposit any portion of the principal decreed amount. 19. In view of the above, the defendant has failed to make out any case for setting aside the ex parte decree under Order 9 Rule 13 of the Code. The judgment of the Hon’ble Apex Court in case of G. Ratna Raj (supra) defines what constitutes an ex parte decree, and the ratio thereof, when applied to the facts of the present case, does not assist the defendant. It is nobody's case that the decree was not an ex parte decree, it is undisputedly an ex parte decree passed in the absence of the defendant. However, the argument on this ground therefore fails. 20. The defendant chose not to remain present on his own volition and choice. Even, the defendant has not preferred any application to set aside ex parte decree under O 9 R 13. Yet, this Court has examined the consideration for setting aside ex parte decree in view of scope of First Appeal u/s 96 of the Code. 21. As regards the second contention of non-application of mind, the plaintiff filed the suit to recover the outstanding C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 amount of Rs. 42,06,250/- for selling brass parts and hardware materials to the defendant. The impugned judgment, in paragraphs 10, 11 and 12, contained references to the purchase of potatoes (Rs.4,76,065/-) and to the plaintiff company's entitlement to telephonic services (Rs. 27,535), which are plainly unrelated to the plaintiff's actual case. However, these were typographical errors that crept into the impugned judgment. The learned trial court has, under Section 152 of the Code of Civil Procedure, 1908, rectified the said typographical errors by passing a fresh order / rectification order at Exhibit 47. These typographical errors, having been duly rectified, cannot be characterised as non- application of mind. Similarly, the discrepancy between the rate of interest mentioned in the reasoning part of the judgment (6% per annum) and the operative part of the judgment (18% per annum) was also a typographical error and was rectified by the same order at Exhibit 47. This too cannot amount to non-application of mind. 22. In order to prove his case in the ex parte proceedings, the plaintiff, in addition to entering the witness box, produced the following documentary evidence: Exhibit No. Document / Description Exhibit 17 to 21 Original bills / invoices (Bill Nos. 31, 38, 39, 42, 46) for supply of brass parts and other items to the defendant, covering the period from 26th July 2017 onwards. Page 17 of 19 C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 Exhibit 22 and 23 C Forms issued for the aforesaid bills. Exhibit 24 and 25 Original ledger accounts for the period 1st January 2016 to 31st July 2017 and 8th April 2017 to 31st October [year not stated], along with Chartered Accountant certificates. Exhibit 26 to 34 Copies of cheques forwarded by the defendant towards payment of the outstanding amount, returned unpaid. Exhibit 37, 38, 39, 40 Ledger account of the defendant, along with Chartered Accountant certificate. Exhibit 47 Rectification order passed by the learned trial court under Section 152 of the Code of Civil Procedure, 1908, correcting the typographical errors in the original judgment. 23. The entire evidence went unchallenged, as the defendant failed to participate in the trial. This Court finds that the plaintiff, in the ex parte suit, duly discharged the burden of proving its case against the defendant. The decree, though passed ex parte, is a valid and effective decree. The defendant failed to demonstrate any circumstances, illegality, or violation of law in the judgment and decree appealed from. There is no merit in the grounds urged by the defendant in either count. 24. In view of the above, the defendant has failed on both counts. The defendant has not made out any case to set aside C/FA/2986/2021 CAV JUDGMENT DATED: 10/07/2026 the ex parte decree. The defendant has further failed to establish that the learned trial court passed the decree without application of mind. Thereby, this Court finds no reason to interfere with the impugned decree. 25. Accordingly, the First Appeal fails and is dismissed. 26. Consequently, CA does not survive and stands disposed of accordingly. Interim relief, if any, granted earlier stands vacated forthwith. 27. Registry is directed to return back the R & P, if any, to the concerned Court forthwith. (J. C. DOSHI,J) SHEKHAR P. BARVE Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 10/07/2026 13:33:33