[2025:RJ-JP:38724] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Writ Petition No. 18332/2022 Banwarilal S/o Radhakishan, Aged About 60 Years, R/o Village Renwal, Tehsil Phulera District Jaipur ----Petitioner/Appellant Versus 1. Shrawan Kumar S/o Radha Kishan, R/o Khatushyam Ji, Tehsil Dantaramgarh District Sikar Rajasthan 2. Bajranglal S/o Radha Kishan, R/o Khatushyam Ji, Tehsil Dantaramgarh District Sikar Rajasthan ----Respondents/Non-appellants For Petitioner(s) : Mr. Vishnu Kumar HON'BLE MR. JUSTICE GANESH RAM MEENA Order 15/09/2025 1. The present civil writ petition has been filed under Article 227 of the Constitution of India against the order dated 02.09.2022 passed by the Additional District Judge Dantaramgarh District Sikar in Civil Misc. Appeal No. 15/2019 (52/2016) (CIS No. 52/2019) whereby, the learned Appellate Court dismissed the appeal and has upheld the order dated 08.07.2016 passed by the Court of Senior Civil Judge, Dantaramgarh, District Sikar in Civil Suit No.09/2012 by which application filed under Order 9 Rule 13 CPC read with Section 5 of the Limitation Act by the petitioner was rejected. 2. The facts arising out of the writ petition are that a civil suit for permanent injunction was instituted on 08.01.1999 by the respondent No.1/plaintiff against Bajranglal and the present [2025:RJ-JP:38724] (2 of 8) [CW-18332/2022] petitioner, namely, Banwarilal as well as the Sub-Registrar Tehsil Dantaramgarh and State of Rajasthan through District Collector Sikar. The petitioner/defendant filed written statement along with counter claim, in response to which, a reply to the counter claim was filed by the respondent/plaintiff on 06.02.2004. The learned counsel for defendants pleaded ‘no instructions’ on 01.03.2007. On 14.05.2007, order of ex-parte decision was passed against the defendants including Bajranglal and Banwarilal. On 17.05.2007, affidavit in evidence was filed by the respondent/plaintiff, no-cross examination was done as the suit proceeded ex-parte against the contesting defendants. A next date of 19.05.2007 was fixed for ex-parte arguments. On 18.05.2007, the suit was decreed and the counter claim was rejected for lack of evidence. The judgment and decree sheet was prepared on 19.05.2007. 3. On 24.01.2012, an application under Order 9 Rule 13 CPC along with a separate application under Section 5 Limitation Act was filed by the petitioner. It was pleaded in the application that the respondent No.1/plaintiff filed a suit against the defendants, his real brothers in respect of Pattashuda residential plot of father of the parties which is an ancestral property. During the father’s lifetime, other properties were given to the applicant and the respondent No. 2 and thereafter, the respondent No.1/plaintiff claimed exclusive ownership on the said property. The respondent/plaintiff alleged that the plaintiff and defendant were said to have resided in Renwal in the pleadings, however, in order to mislead the Court, the notice was collusively [2025:RJ-JP:38724] (3 of 8) [CW-18332/2022] served at the address of Khatushyam Ji to some other person shown as Bajranglal. The respondent/plaintiff alleged that on the basis of the forged signature, appearance of Anil Kumar Bhargava was put as advocate of the petitioner and a written statement was filed. Following this, the said counsel remained absent on 15.05.2007 and ultimately, got the suit decreed ex-parte. 4. The learned counsel for the petitioner denied the claims made by the respondent/plaintiff. It has been submitted that no notice was served on the petitioner and they got to know about the ex-parte decree on 20.12.2011 when the respondent/plaintiff came and threatened stating his exclusive right on the property. Thus, the counsel prayed for allowing the said application and setting aside the ex-parte judgement and decree. 5. The learned trial Court dismissed the application vide order dated 08.07.2016, which was later confirmed by the Additional District Judge, Dantaramgarh while dismissing the appeal preferred by the petitioner vide its order dated 02.09.2022. Thus, aggrieved with the said two orders dated 08.07.2016 and 02.09.2022, the present writ petition has been filed. 6. The learned counsel for the petitioner submits that the impugned orders are in flagrant violation of the provisions of Order 9 Rule 13 CPC. Allegedly, upon pleading ‘no instructions’, the Court was supposed to serve notice upon the petitioner as the suit pertains to immovable property involving valuable rights of the petitioner. It has been submitted that the respondent/plaintiff in his plaint himself pleaded Renwal as petitioner’s address and still [2025:RJ-JP:38724] (4 of 8) [CW-18332/2022] got the notice served at a different address and on the basis of the forged service, got the suit decreed ex-parte. Thereafter, written statement and counter claim was filed by Bajranglal, following which the counsel, though not engaged by the petitioner, committed misconduct by pleading no instructions causing loss to the petitioner’s civil rights. Thus, a prime-facie collusion on respondent/plaintiff’s part has been alleged. 7. Considered the submissions made at bar and also perused the material made available on record. 8. In the light of the submissions made by learned counsel for the petitioner and the facts on record, the Court has to examine whether the application filed by the petitioner under Order 9 Rule 13 CPC after an inexplicable delay of four years be allowed. 9. In the present case, the learned trial Court on 08.07.2016 relying on the case of Sajjan Bai v. Dhanna 1996 DNJ (Raj.) 738 dismissed the application filed by the petitioner under Order 9 Rule 13 CPC. It was held that a delay of four years in filing the said application was not explained adequately, considering the fact that the respondent/plaintiff and the defendants are real brothers. Additionally, the petitioner himself claimed that the counsel Anil Kumar Bhargava remained absent which revealed that he was aware about the case. The learned Appellate Court vide order dated 02.09.2022 while confirming the order passed by the learned trial Court, held that the written arguments presented by the petitioner mentioned the fact that his brother Bajranglal properly received the service. Moreover, the petitioner cannot ride in two boats by [2025:RJ-JP:38724] (5 of 8) [CW-18332/2022] claiming on one hand that the counter claim presented by the counsel is fake and contains forged signatures and on the other hand, accepting his misconduct of pleading no instructions. Thus, the Appellate Court held that the petitioner cannot argue that no proper notice was served upon him by the Court. 10. The relevant provision of Order IX Rule 13 CPC reads as under:- “13. Setting aside decree ex parte against defendant- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; ... Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff’s claim.” 11. The Hon’ble Apex Court in the case of Parimal v. Veena (2011) 3 SCC 545 observed as under:- “12. It is evident from the above that an ex parte decree against a defendant has to be set aside if the party satisfies the court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The [2025:RJ-JP:38724] (6 of 8) [CW-18332/2022] legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein. ... 16. In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.” 12. In the case in hand, the Court finds that there are signatures of the petitioner/defendant on the written statement (photocopy attached with petition) which are similar to the signatures of the petitioner on his vakalatnama in this petition. During the course of arguments, the counsel for petitioner admits the fact that his signatures are there on written statement but were sought by his brother misleading him. When the signatures of the petitioner are there on written statement, the plea that he has not been properly served is wholly misconceived and not sustainable. In opinion of the Court, in such like matters, no lenient approach is to be taken when the trial Courts are burdened with lot of many cases and genuine litigants are waiting for justice from Courts. [2025:RJ-JP:38724] (7 of 8) [CW-18332/2022] 13. Further, the Hon’ble Apex Court in the case of Subodh Kumar v. Shamim Ahmed, Civil Appeal No.s 802-803 of 2021, decided on 03.03.2021 observed as under:- “47. ...Application under Order 9 Rule 13 can be allowed only when sufficient cause is made out to set aside the ex-parte decree...” 14. Having regard to the observations of the Hon'ble Court as quoted above and the discussions made and also taking into consideration the factual matrix of the case and prayer made in this petition, the Court is of the opinion that regard has to be given to the mandatory nature of second proviso to Order IX Rule 13 CPC which provides that the Court shall not set aside the decree on mere irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear in the court. Applying the same to the facts of the present case, it turns out that the petitioner being a real brother of the other involved parties failed to adequately explain the delay of four years in filing the said application. No sufficient cause has been shown by the petitioner for not being able to be present in the Court when he himself claimed that the counsel remained absent, indicating his knowledge about the case. Therefore, the petitioner has not approached the court with a reasonable defence. He has not been able to show sufficient and convincing reasons for a delay of four years in filing the application under Order 9 Rule 13 CPC. The Court thus, finds no ground to interfere in the orders of the Courts below. [2025:RJ-JP:38724] (8 of 8) [CW-18332/2022] 15. In view of the discussion made above, the writ petition deserves to be dismissed as the submissions of the petitioner lack merit. 16. Accordingly, the writ petition is dismissed and the order dated 02.09.2022 passed by the Additional District Judge Dantaramgarh, District Sikar in Civil Misc. Appeal No.15/2019 (52/2016) (CIS No. 52/2019) and the order dated 08.07.2016 passed by the Court of Senior Civil Judge, Dantaramgarh in Civil Suit No.09/2012 are confirmed and upheld. 17. Stay application as well as pending application, if any, also stands disposed of. (GANESH RAM MEENA),J Ashish Kumar /19