1 2025:CGHC:5725 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 109 of 2025 Purnendra Tiwari S/o Late Shri Vijay Kumar Tiwari Aged About 60 Years Caste- Bramhan, R/o Bhoghapara Shivrinarayan, Tehsil Shivrinarayan, District- Janjgir-Champa (Chhattisgarh) ... Petitioner(s) versus 1. Vimla Wd/o Late Shri Khikhram Patel Aged About 57 Years Caste- Patel, R/o Bhoghapara Near Thakurdev Chowk, Shivrinarayan, Tehsil Shivrinarayan, District- Janjgir-Champa (Chhattisgarh) 2. Tahsildar Shivrinarayan Shri Ashwani Kumar Chandra, Tehsil Shivrinarayan, District- Janjgir-Champa (Chhattisgarh) 3. State Of Chhattisgarh Through District Magistrate Janjgir, District- Janjgir-Champa (C.G.) ... Respondent(s) For Petitioner : Mr. Sourabh Sharma, Advocate For State/ Respondent No. 3 : Mr. Sanjeev Agrawal, P.L. Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 31/01/2025 1) By way of this petition, the petitioner has sought the following relief(s):- 10.1 That, this Hon’ble Court may kindly be issued writ/writs, order/ orders, direction to quash the impugned order dated 07.01.2025 (Annexure P/1) and to allow the application filed under Order 9 Rule 7 of CPC, in the interest of justice. 10.2 Any other relief which may deems fit may also be awarded along with cost of the petition. Digitally signed by AJINKYA PANSARE Date: 2025.02.03 14:54:13 +0530 2 2) Learned counsel for the petitioner submits that a suit was filed by the plaintiff/ respondent No. 1 seeking declaration of title based on adverse possession, injunction as also the order passed by the Tehsildar, Shivrinarayan under Section 250 of Chhattisgarh Land Revenue Code, 1959 is null and void. The suit was registered as Civil Suit No. 33-A/2024 before the Civil Judge Junior Division, Nawagarh, District Janjgir-Champa (C.G.). He further submits that summons was issued to the defendants on 18.06.2024 and the case was fixed for 24.07.2024 but defendant No. 1 appeared before the Court below on 07.10.2024. He contends that defendant No. 1 was out of station, therefore, he could not appear on 24.07.2024 and he was proceeded ex-parte. He further contends that the petitioner moved application under Order 9 Rule 7 of CPC on 07.10.2024 and the Court below rejected the same on the ground that the application for condonation of delay along with the aforesaid application has not been filed whereas according to Article 123 of the Limitation Act, 1963, the period of limitation prescribed for filing such an application is 30 days. He argues that the learned Court below wrongly applied provisions of Article 123 of the Act, 1963 whereas a defendant has to assign good reasons for his non-appearance while moving an application under Order 9 Rule 7 of CPC. Thus, he prays to set-aside the order dated 07.01.2025. 3) On the other hand, learned State counsel submits that the petitioner was proceeded ex-parte on 24.07.2024 whereas the application under Order 9 Rule 7 of CPC was moved on 07.10.2024. He further submits that the application was moved after the expiry of 30 days and no application for condonation of delay was filed, therefore, the learned 3 trial Court rightly rejected the application moved by the petitioner. 4) I have heard learned counsel for the parties and perused the documents available on the record. 5) It is evident that summons was issued on 18.06.2024 and defendant No. 1 was supposed to appear before the Court below on 24.07.2024. Learned counsel for the petitioner/ defendant No. 1 has stated that defendant No. 1 was out of station, therefore, he could not appear on that date and he was proceeded ex-parte. Thereafter, on 07.10.2024, defendant No. 1 moved an application under Order 9 Rule 7 of CPC assigning good reasons but no application for condonation of delay was moved, therefore, the learned trial Court rejected the application applying Article 123 of the Act, 1963. 6) In the opinion of this Court, Article 123 of the Act, 1963 would not attract as it states that “to set aside a decree passed ex-parte or to rehear an appeal decreed or heard ex parte, period of limitation is 30 days which will start from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree”. The provisions contained in Article 123 would apply while hearing an application under Order 9 Rule 13 of CPC for setting aside the ex-parte decree whereas according to provisions of Order 9 Rule 7 of CPC, the defendant has to only demonstrate good reasons for his non-appearance. 7) In the present case, defendant No. 1 has assigned good reasons for his non-appearance in the application stating that he was out of station on 24.07.2024. 8) Taking into consideration the above-discussed facts, the order dated 07.01.2025 (Annexure P/1) is hereby set-aside and the application 4 moved by defendant No. 1 under Order 9 Rule 7 of CPC stands allowed, subject to payment of a cost of Rs. 2,000/- payable to the plaintiff(s). 9) Accordingly, the instant writ petition stands allowed. Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya