1 2025:CGHC:6508 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 1018 of 2024 1. Sharfuddin S/o Late Fajihat, Aged About 47 Years R/o Bazaar Para Kusmi, P.S. And Tahsil- Kusmi, District-Balrampur-Ramanujganj (C.G.) -----(Defendant No.1) 2. Pyaare S/o Late Fajihat, Aged About 42 Years R/o Village-Karkali, P.S. And Tahsil- Kusmi, District-Balrampur-Ramanujganj (C.G.) ------(Defendant No.2) ... Petitioner(s) versus 1. Mo. Riyaz Ansari S/o Noor Baksh Ansari, Aged About 43 Years R/o Village-Karkali (West), P.S. And Tahsil-Kusmi, District-Balrampur- Ramanujganj (C.G.) Present Address-Bazar Para, Jashpur Nagar, P.S.-Jashpur, Tahsil And District-Jashpur (C.G.) -----(Plaintiff) 2. Jubeda Wd/o Late Fajihat, Aged About 70 Years R/o Village-Karkali, P.S. And Tahsil- Kusmi, District-Balrampur-Ramanujganj (C.G.) ----- (Defendant) 3. Shaira D/o Late Fajihat, W/o Maqbool, Aged About 50 Years R/o Village-Karkali, P.S. And Tahsil- Kusmi, District-Balrampur- Ramanujganj (C.G.) -----(Defendant) 4. Julekha D/o Late Fajihat, W/o Kayum Ansari, Aged About 48 Years R/o Village-Karkali, P.S. And Tahsil- Kusmi, District-Balrampur- Ramanujganj (C.G.) -----(Defendant) 5. Rajiya D/o Late Fajihat, W/o Harun Rashid, Aged About 38 Years R/o Village-Karkali, P.S. And Tahsil- Kusmi, District-Balrampur- Ramanujganj (C.G.) -----(Defendant). 2 6. Hayimun D/o Late Fajihat, W/o Mahmood Qureshi, Aged About 40 Years R/o Chor Mohalla, Jashpur Nagar, P.S.-Jashpur, Tahsil And District-Jashpur (C.G.) 7. Makarboon D/o Late Fajihat, W/o Khursheed, Aged About 32 Years R/o Azad Mohalla Kunkuri, P.S. And Tehsil- Kunkuri, District-Jashpur (C.G.) -----(Defendant) 8. Razzak S/o Late Fajihat, Aged About 44 Years Res. No.8 Missing, Through His Lr- Muntzir S/o Razzak. R/o Jarhatoli, Mahuadand, P.S.- Mahuadand, District-Latehar, Jharkhand. -----(Defendant) 9. Muntzir S/o Razzak, Aged About 20 Years R/o Jarhatoli, Mahuadand, P.S.- Mahuadand, District-Latehar, Jharkhand. -----(Defendant) 10. Khurshida W/o Razzak, Aged About 35 Years R/o Jarhatoli, Mahuadand, P.S.- Mahuadand, District-Latehar, Jharkhand. ----- (Defendant) 11. State Of Chhattisgarh, Through-The Collector Balrampur, District- Balrampur-Ramanujganj (C.G.) ------(Defendant) ... Respondent(s) For Petitioner(s) : Mr. Anuj Kumar Pandey, Advocate. For Respondent No.1 : Mr. Syed Mohammad Sohail Afzal, Advocate. For respondent No.11/State. Mr. Kishanlal Sahu, Dy,. Govt. Advocate. (Hon’ble Mr. Justice Narendra Kumar Vyas) Order on Board 05/02/2025 1. The petitioners have filed this writ petition under Article 227 of the Constitution of India for quashing of the impugned order dated 17- 10-2024 passed by the learned Civil Judge, Class-2, Rajpur in Case No. C.S. 23-A of 2018 by which the learned trial Court has rejected the application for setting aside the ex-parte proceedings under Order 9 Rule 7 CPC as well as application under Section 5 of Limitation Act. 3 2. This Court has issued notice for appearance of the respondent No. 1 to 5. The respondent No. 1 who was main contesting party has entered appearance and respondents No. 2 to 5 though served, but they have chosen not to appear before this Court, therefore, they were proceeded ex parte. The other defendants were ex parte before the trial Court, therefore, notice is not required to be issued for their presence. 3. The brief facts of the case are that the respondent No.1 has filed a civil Suit for declaration of title, permanent injunction and possession before the learned Civil Judge, Class-2 Rajpur, District Balrampur - Ramanujganj on 16-1-2018 and respondents No. 2 to 11 are defendants also along with petitioner. The petitioners have not appeared before the trial Court on 25.11.2019, therefore, they were proceeded ex parte. As such, the petitioners moved an application for setting aside ex parte proceedings as well as Section 5 of Limitation Act on 25.07.2024 mainly contending that the petitioner without going through the contents of the written statement they have signed the written statement on the promise made by the plaintiff that he will give the sale consideration to them, but he has cheated them and no sale consideration has been paid to them. It has also been contended that the plaintiff has given cheque in favour of Pyare Hasan defendant No. 2 but the amount has not been received to them. The learned civil court has rejected the application of the petitioners by the impugned order dated 17- 10-2024. Being aggrieved by the order passed by the learned Civil Court, the petitioners have preferred the present petition. 4. Learned counsel for the petitioners would submit that the suit was filed on 16-1-2018. Learned trial Court issued notice to the respondents and the present petitioners were proceeded ex parte 4 on 25-11-2019 as no one had appeared on behalf of the plaintiff, Thereafter the matter was adjourned to 13-1-2020 and again it was adjourned to 13-4-2020 for framing of issue, therefore, the proceedings were kept in abeyance because of Covid 19 Pandemic and the matter was regularly taken up for hearing by the trial Court on 16-6-2022 after restoration of normalcy in the court functioning and thereafter the proceeding were continued as reflected from the order sheets. 5. Since the petitioners could not participated in the proceedings as mentioned in the application filed under Order 9 Rule 7 of CPC prayed for setting aside the ex parte proceedings against them. The said application was supported by an afÏdavit also. They have also filed an application for condonation of delay under Section 5 of the Limitation Act. 6. Learned trial Court vide impugned order dated 27-20-3034 has rejected the said application as no justifiable reason has been assigned for setting aside the ex parte proceedings against the petitioner. Being aggrieved by the said order, respondent No.1 has preferred the writ petition reiterating the submission taken in the trial court and would submit that he is subjected to fraud by the plaintiff, thus he would pray for setting aside the ex parte order. Learned counsel for the petitioner would further submit that if any order is passed by playing fraud in the court proceedings it can be cured/rectified at any time and delay in filing the application should not come in the way of rescue of the petitioners and would pray for setting aside the ex parted proceedings initiated against them and would pray for allowing the writ petition. 7. On the other hand, learned counsel for respondent No.1 would submit that no fraud has been committed by them and the 5 allegations are hypothetical and have no relevancy to the issue raised in the plaint. Thus, he would pray for dismissal of the petition. Learned counsel for the State would submit that there is inter se dispute between the petitioner and respondent No.1 and the State is a formal party and would pray for dismissal of the writ petition. 8. I have heard learned counsel for the parties and perused the record. 9. Considering the well settled position of law that the application filed under Order 9 Rule 7 of the CPC alongwith the application for condonation of delay should be considered liberally when no right of any is adversely affected at this juncture as trial is at initial stage, therefore, if the petitioners are allowed to participate in the proceeding, there is no harm to anyone as no right of the party has been accrued, but if they are not given an opportunity to participate in the proceedings, it will amount to denial of fair play. Considering this aspect of the matter, I am of the view that this writ petition deserves to be allowed and the order dated 25-11- 2019 as well as the impugned order dated 17-10-2024 deserves to be set aside and are accordingly set aside. 10. Accordingly, the instant writ petition is allowed. The petitioners are directed to appear before the trial Court for participation in the proceedings on 25-2-2025. 11. It is made clear that this Court has not gone to the merit of the allegations made in the application against the petitioner, the same shall be tested and considered on the basis of the pleadings, 6 evidenced and material placed on record without being influenced from the order passed by this Court on its own merit. Sd/- (Narendra Kumar Vyas) JUDGE Raju RAVVA SATYANARAYANA RAJU Digitally signed by RAVVA SATYANARAYANA RAJU Date: 2025.02.19 19:03:51 +0530