1 2025:CGHC:9280 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 74 of 2018 1 - Sanjay Ali S/o Santosh Ali Aged About 43 Years R/o Bajinpali, Fathamuda, Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh 2 - Smt. Fatima Khatun @ Sushila Sahu W/o Sanjay Ali Aged About 42 Years R/o Bajinpali, Fathamuda, Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh ... Appellants/Defendants versus 1 - Mansay Sahu S/o Late Sitaram Sahu Aged About 41 Years R/o Navapara, Tahsil And District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh ... Respondent/Plaintiff For appellants : Mr. Ravindra Sharma, Adv. For Respondent : Mr. Amit Sharma with Mr. Krishna Tandan, Adv. (Hon’ble Mr. Naresh Kumar Chandravanshi) Order on Board 21/02/2025 1. This appeal has been preferred by the appellants under Order 43 Rule 1(D) of the Civil Procedure Code, 1908 (henceforth ‘CPC’) challenging the order dated 17-4-2018 passed by the Second Upper District Judge, Raigarh in MJC case No. 48/2017, whereby application filed by the appellants/defendants under Order 9 Rule 13 of CPC has been dismissed. Digitally signed by AVANISH KUMAR PATHAK Date: 2025.02.25 11:56:34 +0530 2 2. Facts of the case in nutshell are that, respondent/plaintiff had filed civil suit bearing Civil Suit No.B/02/16 against both the appellants/defendants for recovery of Rs.9,80,000/-. During the course of trial, at the stage of defendants’ evidence, appellants/defendants remained absent, as such, on 08.05.2017, ex-parte proceeding was initiated against them and ex-parte judgment and decree was passed by the trial Court on 12.05.2017. They filed application before 2nd Upper District Judge Raigarh (C.G.) under Order 9 Rule 13 of CPC for setting aside the ex-parte judgment and decree along with application under Section 5 of the Limitation Act, 1963 for condoning the delay in filing the application. Learned Upper District Judge, condoned the delay by allowing application under Section 5 of the Limitation Act, but rejected the application filed under Order 9 Rule 13 of CPC vide impugned order dated 17.04.2018. Hence, this appeal. 3. Learned counsel for the appellants/defendants would submit that on 08.05.2017, they were out of station and they could not inform this fact to their counsel, as such, their counsel also did not appear, therefore, defendants were declared ex-parte and after hearing final arguments on the next date, i.e., 10.05.2017, judgment and decree was pronounced after two days, i.e., 12.05.2017. Learned counsel further submits that, their counsel did not inform them about the ex-parte judgment and decree passed against them, as such, they enquired about the case from their counsel, then only he told them about the ex- parte judgment and decree. Thereafter, they obtained certified copy and filed application under Order 9 Rule 13 of CPC along with application under Section 5 of the Limitation Act. Though, the Upper 3 District Judge condoned the delay, but rejected the application under Order 9 Rule 13 of CPC only on the ground that in concerned Civil Suit No.B/02/16 and MJC Case No.48/2017, the counsel representing the defendants is the same and despite granting two opportunities, they failed to produce their witnesses. Learned counsel further submits that though the counsel representing them is the same, but it cannot be a ground for rejection of application under Order 9 Rule 13 of CPC. Referring to the judgment of Hon’ble Apex Court in the case of Lal Devi and Another Versus Vaneeta Jain & Others [AIR 2007 SC 1889], he submits that they were represented before the trial Court by the advocate, but the advocate did not appear on 08.05.2017, therefore, the defendants could not be punished because of fault of their advocate. 4. In reply, learned counsel for the respondent would submit that prior to ex-parte proceeding initiated against appellants/defendants, they were granted many opportunities to produce their witnesses, but they wanted to delay the case and in this motive, they did not appear on 08.05.2017. Subsequently, by filing condonation application, they filed application under Order 9 Rule 13 of CPC only with ulterior motive to cause delay in the proceeding and also to cause delay to give amount to the plaintiff. Hence, it is prayed that instant appeal is liable to be dismissed. 5. I have heard learned counsel for the parties and perused the material available on record carefully. 6. Perusal of order sheets show that it was a ‘B’ class suit and defendants were granted two opportunities to produce their witnesses, despite 4 that, they failed to produce their witnesses and subsequently, they remained absent. It also cannot be lost sight of that appellants/defendants were represented by their counsel, and if, their Advocate did not appear, only on this count, they cannot be deprived from getting justice on merits. But, at the same time, it was also the duty of the defendants to enquire about their case from their counsel as soon as possible, but they enquired belatedly. 7. It is trite law that instead of dismissing the suit, appeals etc. on technical grounds, it ought to have been decided on merits, so that litigants may not be deprived from getting complete justice. In the case of Lal Devi (supra), Hon’ble Apex Court has also held that, defendants cannot be made to suffer ex-parte judgment and decree, particularly when he was not at fault, having duly instructed his counsel to appear before the Court of learned District Judge. In the instant case also, the appellants/defendants were represented by their counsel, but he did not appear on 08.05.2017, therefore, ex-parte proceeding was initiated against them. 8. Having considered the aforesaid facts and case law, I feel inclined to allow this appeal, but at the same time, it cannot be brushed aside that due to such conduct of defendants, the plaintiff has been deprived from getting justice in time in original suit, therefore, keeping in mind the aforesaid facts and further maintaining the balance between both the parties, this appeal is liable to be allowed, subject to imposing cost of Rs.20,000/- upon the appellants/defendants payable to the respondent/plaintiff. 9. Accordingly, this miscellaneous appeal is allowed subject to payment of 5 cost of Rs. 20,000/- (Rupees Twenty thousands only) by the appellants/ defendants to the respondent/plaintiff, the order dated 17.04.2018 passed by the 2nd Upper District Judge, Raigarh in MJC Case No.48/2017, so far as, it relates to rejection of application under Order 9 Rule 13 of CPC, is set aside and the 2nd Upper District Judge, Raigarh, District Raigarh (C.G.) is directed to restore the Civil Suit No.B/02/16 (Mansai Sahu Versus Sanjay Ali and Another) in its original number. 10. Counsel for both the parties are directed to make present their respective party before the 2nd Upper District Judge, Raigarh, Distt. Raigarh on 24-3-2025. Learned Upper District Judge is further directed to decide the case within further period of 3 months. 11. Record of the aforesaid case be sent to 2nd Upper District Judge, Raigarh, District Raigarh (C.G.) forthwith. 12. No order as to cost(s). Sd/- (Naresh Kumar Chandravanshi) JUDGE Pathak