-1- 2025:CGHC:31082 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 614 of 2023 Kamalnath Rajbhar Son Of Rudal Ram Rajbhar, Aged About 51 Years Resident Quarter No. 13/f, Street No. 38, Sector -7, Bhilai, District - Durg, Chhattisgarh. (Address Mentioned In Civil Suit As Sector 7, Civic Center Bhilai, Tahsil and District - Durg, Chhattisgarh. (Defendant No. 1) ... Petitioner versus 1 - Punitram Nishad Son Of Budgam Nishad, Aged About 68 Years Resident Of Village Dundera, Tahsil and District - Durg, Chhattisgarh. /kashtkar Village - Parewadih /mahkakala, Tashil Patan, District - Durg, Chhattisgarh. (Plaintiff). 2 - Vishal Soni, Son Of G.P. Soni, Aged About 48 Years Resident Of Lig - 262, Padmanabhpur, Durg, Tahsil and District - Durg, Chhattisgarh. (Defendant No. 2). 3 - State Of Chhattisgarh Through District - Collector, Durg, District - Durg, Chhattisgarh. (Defendant No. 3) ... Respondent(s) (Cause Title is taken from Case Information System) For Petitioner : Mr. Shikhar Sharma, Advocate For State : Ms. Neelima Singh Thakur, Panel Lawyer For Respondents No. 1 & 2 : Mr. Amit Nayak, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 07.07.2025 Digitally signed by NADIM MOHLE -2- 1) The petitioner has filed this petition seeking the following relief(s):- “10.1 That, the Hon'ble Court may kindly be pleased to set- aside the impugned order dated 21-07-2023 (Annexure P-1). 10.2 That, the Hon'ble Court may kindly be pleased to direct the learned Court below to provide the opportunity of filing the written statement to the petitioner/defendant No.1 and to provide him opportunity to take part in the proceeding of the trial court. 10.3 That, this Hon'ble Court may kindly be pleased to grant any other relief, as it may deems fit and appropriate.” 2) Learned counsel for the petitioner submits that the petitioner/defendant No.1 had purchased the suit property from the plaintiff for a consideration of ₹66,00,000/- through a registered sale deed dated 19.02.2020. He further submits that the matter was pending before the learned trial Court and was fixed for filing the written statement and further proceedings. He would also submit that on 21.06.2023, the petitioner failed to appear before the learned trial Court and was proceeded ex-parte. Thereafter, he filed an application under Order IX Rule 9 of the Code of Civil Procedure, 1908 (for short, CPC) on 17.07.2023 for setting aside the ex-parte proceedings. However, the learned trial Court rejected the said application vide order dated 21.07.2023 on the ground that the petitioner failed to assign sufficient reasons for his non-appearance on 21.06.2023. 3) Learned counsel for the petitioner further argues that an application was filed under Order IX Rule 9 CPC instead of Order IX Rule 7 CP but wrong provision of the law would not lead to the rejection of the application. He prays that the impugned order may be set aside. 4) On the other hand, learned counsel for the respondents opposes the submission -3- made by counsel for the petitioner and submits that despite the service of summons, the petitioner did not appear before the trial Court on the date fixed. No sufficient cause was shown for his non-appearance and therefore, the learned trial Court rightly proceeded ex-parte and rejected the application. 5) I have heard learned counsel for the parties and perused the material available on the record. 6) In the context of Order IX Rule 9, the High Court of Andhra Pradesh in the matter of Mohd. Khaja v. C. Nand Kumar, 2000 AIHC (2694) (AP), observed that when substantial rights are involved, it is expedient to decide the matter on merits than to dismiss for default. Similarly, the High Court of Madhya Pradesh in the matter of Samotibai v. Dhannalal & Ors., II (2005) ACC 137, opined that when the non-appearance does not smack malafide and does not seem to be false or frivolous, the court should enable the claimant to substantiate his case. 7) Furthermore, sufficient cause for non-appearance refers to the date on which the absence was made a ground for the dismissal of the suit cannot be stretched to rely upon other circumstances anterior in time. 8) The Hon’ble Apex Court in the matter of Kamla Bai v. Harishankar Arora (2010) 15 SCC 454, held that when the non-appearance of the plaintiff is only for one day and when the defendant doesn’t appear in the case against the dismissal of the restoration application under Order IX Rule 9, the suit must be restored to the original file. 9) The factual matrix of the present case squarely fit in as defendant No.1 in the subject suit had also not appeared on a given day. The absence of a party in the case on the date of the hearing may lead to a delay in the disposal of the matter, but the other side can be compensated by adequate cost and the lis can be -4- decided on merits to meet the ends of justice. However, this Court by this view is not giving a free ticket to the negligence and lethargic attitude of the parties, who do not pursue their matters as per the timelines. 10) Taking into consideration the above-discussed facts and the law, in the opinion of this Court, the learned trial Court took a hyper-technical approach in rejecting the application of the petitioner moved under Order 9 Rule 9 of the CPC for setting aside the ex parte order. The rejection of the application on the sole ground of incorrect mention of the provision, despite there being sufficient explanation regarding the absence, does not appear to be in the interest of justice. 11) Accordingly, the impugned order dated 21.07.2023 is hereby set aside. The application filed by the petitioner for setting aside the ex-parte proceedings is hereby allowed. 12) The writ petition is accordingly allowed, subject to the payment of a cost of 2,000/- to the respondent/plaintiff. ₹ Sd/- (Rakesh Mohan Pandey) Judge Nadim