[2025:RJ-JP:12294] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Revision Petition No. 357/2024 Mehar Chand Son Of Jayram, Aged About 67 Years, Resident of Milakpur Gurjar, Tehsil Tijara, District Alwar, Rajasthan. ----Petitioner Versus Jagdish Son of Late Ramdayal, Resident of House No. 535, Sector 3, Rewari, District Rewari, Haryana. ----Respondent For Petitioner(s) : Mr. Jai Raj Tantia For Respondent(s) : Mr. R.K. Mathur, Senior Advocate with Mr. Aayush Goyal HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order 20/01/2025 1. Instant S.B. Civil Revision Petition is preferred by the petitioner-defendant Mehar Chand aggrieved from order dated 06.11.2024 in Civil Miscellaneous Appeal No.50/05/2022 passed by learned Additional District Judge No.2, Tijara, District Alwar whereby order dated 25.05.2022 in Civil Miscellaneous Case No.41/02/2019 under Order IX Rule 13 CPC was upheld. 2. Facts giving rise to instant revision petition are that respondent-plaintiff Jagdish has instituted a civil suit for mandatory and permanent injunction against four defendants (including present petitioner) and same was decreed on 05.12.2017 as civil suit No.34/09/12 (34/38/11) by learned Civil Judge (Senior Division), Tijara, District Alwar. In the suit filed by respondent-plaintiff-Jagdish, the defendants have filed written [2025:RJ-JP:12294] (2 of 10) [CR-357/2024] statement but afterwards an ex-parte proceeding was ordered on 14.12.2012 and, ultimately, the suit was decreed on 05.12.2017. 3. An application under Order IX Rule 13 CPC was filed before Senior Civil Judge No.1, Tijara, District Alwar and same was dismissed on 25.05.2022. Aggrieved from order dated 25.05.2022, present petitioner has filed a miscellaneous appeal and same was dismissed on 06.11.2024, hence, present revision petition. 4. Learned counsel for the petitioner – defendant while referring order-sheets of civil suit No.34/09/2012 submitted that the matter was fixed before learned Civil Judge (Senior Division), Kishangarh Bas, District Alwar but without any intimation same has been taken up by the Civil Judge (Senior Division), Tijara on 29.11.2012 and, thereafter, an ex-parte order was passed by 14.12.2012. He also referred the proceeding and submitted that the defendants have filed written statement, therefore, the duty lies upon the learned trial court to frame issues but herein, no issues were framed and without framing issues, the suit was decreed ex-parte. He also submitted that when a case was transferred from the Court at Kishangarh Bas, District Alwar to the Court at Tijara, District Alwar, then a notice is required to be served upon the parties concerned so that they may become aware about transfer of case but in the instant case, without any notice or order, the case was taken up by the court at Tijara. He also referred the subject matter in the instant case and submitted that in case, a proper opportunity to defend the case is not granted to present petitioner-defendant then he will suffer [2025:RJ-JP:12294] (3 of 10) [CR-357/2024] irreparable loss. He also submitted that when the facts were not admitted and written statement is filed on record then the stage is for settlement of issues as provided under Order XIV of CPC. 5. He further submitted that the judgment and decree suffers from procedural illegality and in case of illegality, same is required to be cured by setting aside judgment and decree. He also referred impugned order passed by the appellate court and also by the trial court on 25.05.2022 and submitted that the petitioner was not aware about the judgment and decree passed on 05.12.2017 and as soon as he became aware he has moved an application under Order IX Rule 13 of CPC. At last, he submitted that the Court has enough power to set aside the judgment and decree and provide an opportunity to petitioner to defend the case after fixing a timeline for disposal of civil suit. He further relied upon judgments in case of Fiza Developers & Inter-Trade P. Ltd. Vs. AMCI (l) Pvt. Ltd. & Anr. : [2009] 12 SCR 1, Makhan Lal Bangal Vs. Manas Bhunia and Ors. : [2001] 1 SCR 17 and Ramgulam Alias Sadhu Patel Vs. Bhagwat Prasad Patel : (2020) 19 SCC 510. 6. Aforesaid contentions were opposed by learned Senior Advocate appearing on behalf of respondent-plaintiff and he submitted that initially the case was instituted in jurisdictional court having sitting at Kisangarh Bas, District Alwar but later after creation of court at Tijara, the case was transferred to the Court at Tijara and everyone including the counsel for the present petitioner was aware about transfer of case relating to territorial jurisdictional of Tijara. He also submitted that in case of creation [2025:RJ-JP:12294] (4 of 10) [CR-357/2024] of new court and transfer of cases in bulk quantity, a proper notice is always affixed on notice board and every lawyer is aware about transfer of case to newly created court. He further submitted that ex-parte proceedings was ordered on 14.12.2012 and judgment was passed on 05.12.2017 but for more than five and half years present petitioner-defendant has not enquired about pendency and status of civil case filed against him. He also submitted that the defendant was served a notice and in pursuant to notice, he made appearance through counsel and filed his written statement. Learned Senior Counsel further referred the application filed by present petitioner-defendant and submitted that as per defendant, they have received summon of execution on 29.08.2019. He also submitted that this statement was wrong as the defendant was aware about inspection of Commissioner made on 05.08.2014. He further submitted that even the defendants were aware about a contempt proceedings initiated under Order 39 Rule 2A read with Section 151 CPC. He further referred the facts narrated by learned trial court on 25.05.2022 and submitted that the trial court and the first appellate court have dealt these grounds in specific manner and after considering the grounds, both the courts founds that the application was filed after a substantial delay. 7. He further highlighted scope of a revision petition and submitted that in a revision petition, this Hon’ble Court cannot go into the factual aspect pleaded by the petitioner. He further referred the Article 123 of the Limitation Act and submitted that 30 days time period is prescribed for filing an application to set aside ex-parte decree passed by the trial Court. He also referred [2025:RJ-JP:12294] (5 of 10) [CR-357/2024] judgment in case of Mahabir Singh Vs. Subhash and Ors. (2008) 1 SCC 358 and submitted that in a revision petition, this Hon’ble Court cannot look into the facts. He further referred judgment in case of Krishan Chand Gupta Vs. Yogesh Kumar and Anr. 2015 SAR (Civil) 1164 SC and ECGC Limited Formerly Export Credit Guarantee Corporation of India Limited Vs. M/s Dave Exports Through Proprietor Sharad Dave and Anr.: 2024(4) WLC 31 (Raj.), and submitted that this petition sans merit. 8. Heard learned counsel for the petitioner and learned Senior Advocate appearing for the respondent and perused the entire record and also the judgments as referred by both sides. 9. A perusal of order-sheets indicates that initially the suit was filed before learned Civil Judge (S.D.), Kishangarh Bas, District Alwar and the petitioner-defendant has filed written statement with other defendants on 13.02.2012. Thereafter, the matter was fixed for settlement of issues. On 29.10.2012, the matter was adjourned to 29.11.2012. On 29.11.2012, the matter was taken up by learned Civil Judge (SD), Tijara, District Alwar and neither defendants nor his counsel were present. The matter was adjourned to 07.12.2012 as Presiding Officer was on leave. On 14.12.2012, the Civil Judge (SD), Tijara has ordered ex-parte proceedings against the defendants. Thereafter, suit was decreed on 05.12.2017. 10. A perusal of civil miscellaneous case No.41/02/19 indicates that on 31.07.2014, a Commissioner was appointed to prepare on site report and a notice was served by Commissioner Mr. Suresh [2025:RJ-JP:12294] (6 of 10) [CR-357/2024] Chand Yadav for inspection on 05.08.2014. The notice bears signatures of present petitioner Mehar Chand. It indicates that Mehar Chand was aware about appointment of Commissioner, who visited and inspected the site on 05.08.2014. Thus, the litigation between the parties was within knowledge of present petitioner. 11. Here in this case, the ex-parte order was passed on 14.12.2012 and decree was passed on 05.12.2017 but during this period, the petitioner – defendant Mehar Chand was served notice by Commissioner on 05.08.2014 and this fact was not denied by the present petitioner. An application under Order 39 Rule 2A CPC was also filed and decided by the Court at Tijara. Later application under Order IX Rule 13 CPC was filed on 18.09.2019. 12. Hon’ble Supreme Court in case of Dwarika Prasad (D) through Lrs Vs. Prithvi Raj Singh : 2024 INSC 1030 held that a separate application seeking condonation of delay is not necessary to be filed along with an application seeking to set aside an ex-parte decree under Order 9 Rule 13 of CPC, if the application sufficiently explains the delay. 13. A perusal of application filed by present petitioner indicate that the petitioner and other defendants were under the impression as pressed by learned counsel that only on notice of execution they came to know about the ex-parte decree. It is also a fact that on 05.08.2014, when Commissioner has served a notice of inspection before preparing report in a proceeding under Order 39 Rule 2A r/w S.151 CPC, an ex-parte deree was not passed, therefore, the petitioner was not aware about passing of decree on 05.08.2014 and the trial court has committed serious [2025:RJ-JP:12294] (7 of 10) [CR-357/2024] error while observing that the petitioner was aware about ex-parte decree in 2014. The appellate court has also considered that the petitioner was aware about pending proceedings after notice on 05.08.2014. Herein the appellate court was of the view that after knowledge of pending proceedings, the petitioner has not taken any step to participate in the proceeding. The appellate court has also considered that the petitioner who was appellant before the appellate court has not contacted his counsel despite notice of preparation of site inspection report by Commissioner appointed by the Court. The appellate court was of the view that no reasonable and sufficient explanation was offered for not participating in the proceedings before the trial court. 14. A fact is also apparent on record that defendants including present petitioner have filed written statement and the matter was fixed for settlement of issues. The trial court instead of framing of issues has proceeded ex-parte and passed a decree ex-parte on 05.12.2017. The procedure adopted by trial court is not illegal, rather it is a procedural issue. Therefore, non framing of issues is not sufficient ground to set aside the ex-parte decree. 15. In case of Makhan Lal Bangal Vs. Manas Bhunia and Ors. (supra), Hon’ble Supreme Court while considering an election petition has observed that the stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. In case of Fiza Developers & Inter-Trade P. Ltd. Vs. AMCI (l) Pvt. Ltd. & Anr. (supra) again considering Order XIV Rule 1 of CPC, Hon’ble [2025:RJ-JP:12294] (8 of 10) [CR-357/2024] Supreme Court has held that the object of framing of issues is to focus upon the questions on which evidence has to be led and to indicate the party on whom the burden of proof lies. It was observed that the framing of issues is necessary in every contested regular civil suit. 16. A perusal of Order XIV Rule 1 of CPC in light of principle of law as laid down by Hon’ble Supreme Court indicates that at the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and after examination under Rule 2 of Order X CPC and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend but Rule 1(6) of Order XIV CPC also provides that Nothing is this rule requires the Court to frame and record issues, where the defendant at the first hearing of the suit makes no defence. 17. Having considered the provision of law as discussed hereinabove, it is apparent on record that the petitioner – defendant remained absent when the matter was called by learned trial court and in his absence an ex-parte order was passed. Therefore, there is no illegality in proceeding ex-parte even if written statement of present petitioner was on record. Otherwise also, learned trial court has considered written statement filed by the petitioner with other defendants and framed one issue in para 4 of judgment, thus, both the judgments are not applicable in the instant case. [2025:RJ-JP:12294] (9 of 10) [CR-357/2024] 18. Here in this case, the matter was transferred from the court at Kishangarh Bas, District Alwar to the court at Tijara, District Alwar. The reason as mentioned by learned Senior Advocate for respondent indicates that there was a creation of court which led to transfer of cases in bulk quantity. This fact was neither explained nor denied. Moreover during pendency of civil suit a Commissioner was appointed and on 05.08.2014 notice was served upon present petitioner but after notice, effort he made is not explained on record. 19. In case of Ramgulam Alias Sadhu Patel Vs. Bhagwat Prasad Patel (supra) held that no notice issued by transferee court to appellant-defendant and suit decreed ex-parte and advocate representing defendant died, therefore, it is held that the ex-parte decree passed by the appellant was nullity. 20. We have considered a similar issue in case of ECGC Limited Formerly Export Credit Guarantee Corporation of India Limited Vs. M/s Dave Exports Through Proprietor Sharad Dave and Anr. (supra) and found that when the defendant has participated in the proceeding then such a notice is not necessary. Here in this case, the ground is only to transfer a case from a court at Kisangarh Bas to court complex, Tijara. 21. Since ex-parte decree was passed after five years of transfer and during this period, the present petitioner received a notice by commissioner in the month of August, 2014, but he remained negligent. The petitioner has neither taken any action after notice on 05.08.2014 nor after filing written statement for around seven years then ultimately it is petitioner who is careless and negligent, [2025:RJ-JP:12294] (10 of 10) [CR-357/2024] about legal proceeding. Thus, the judgment of Ramgulam Alias Sadhu Patel Vs. Bhagwat Prasad Patel (supra) is not applicable on the facts of this case. The petitioner is not entitled for benefit of principle of law laid down by Hon’ble Supreme Court. 22. Here in this case, the facts of the case clearly indicate that the petitioner – defendant remained negligent in taking action on time and he failed to show sufficient ground for non participation either in the proceedings or contacting his counsel. The application also indicate that it was in the month of August, 2019 when the petitioner has sought legal advice and filed an application for setting aside of ex-parte decree along with application for condonation of delay. The duty lies upon the petitioner to substantiate the reasons and explain sufficient cause but facts narrated hereinabove clearly indicate that the petitioner has failed to take action within reasonable time. Therefore, the appellate court has not committed any error while dismissing the appeal and affirming the order of dismissal of application under Order IX Rule 13 of CPC. 23. In view of discussion made hereinabove, instant revision petition sans merits and same is liable to be dismissed. 24. As a result, the revision petition preferred by the petitioner – defendant is hereby dismissed with pending application(s), if any. 25. No order as to cost. (ASHOK KUMAR JAIN),J PKS/247