# Usha Devi @ Urmila Devi & Ors v. Malti Devi & Ors

- **Citation:** (2025) 3 ILRA 843
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-26
- **Case number:** Writ C No. 1005313 of 2013
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/usha-devi-urmila-devi-ors-v-malti-devi-ors-53247
- **Pages:** 11

## Headnote

Law
-Code
of
Civil
Procedure,1908 - Order IX Rule 13-Exparte
Decree-Sufficient
causeRestoration of suit-Petitioners sought to
set aside ex-parte judgment and decree
dated 24.10.2008 passed in a suit for
permanent
injunction,
claiming
nonservice of notice and lack of knowledge
of amendment in plaint-Trial court and
Appellate
Court
both rejected
their
application under Order IX Rule 13 CPCThe court held that "sufficient cause"
must be construed liberally where no
gross negligence or mala fide exists-It
was found that the petitioners had
promptly filed an application under
Order IX Rule 13 CPC, had contested the
suit earlier, and were dependent on their
counsel-The
court
emphasized
the
primacy of substantive justice over
technicalities and held that denial of
opportunity to contest caused potential
irreparable
loss-Accordingly
the
exparte decree was set aside, and the
original suit restored.(Para 1 to 37)

B.
It
is
well
settled
that
where
technicalities
are
pitted
against
substantive
justice,
it
is
substantive
justice which should be preferred as the
Court lean in favour of doing substantive
justice rather than to foreclose the rights
of the parties by adopting a hypertechnical view. (Para 28)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

3 All. Usha Devi @ Urmila Devi & Ors. Vs. Malti Devi & Ors.
843
of sale deed to test since its jurisdiction
arose only when the deed of transfer had been
effected on or after the appointed day. The sale
deed executed in favour of petitioner Nos.4 to 7
and grand father of petitioner Nos.1 to 3 have
never been challenged before any forum nor
cancelled at any point of time, therefore, the
finding recorded by both the courts below are
not tenable in law and is liable to be set aside.
Sub-section 6 of Section 5 did not confer
jurisdiction on the authorities to determine the
validity of the sale and therefore the findings
recorded by such an authority on the contents of
the sale deed or the adequacy or otherwise of
the sale consideration could also not be gone
into. With regard to the argument made on
behalf of the petitioner that the registered sale
deed made in favour of petitioner Nos.4 to 7
and grand fatehr of petitioner Nos.1 to 3 being
of a date prior to the appointed day and thus
could not be looked into at all on the basis
reliance placed on the judgment rendered in the
case of Ramadhar Singh Vs. Prescribed
Authority & others 1994 Supp (3) SCC 702.

37. The arguments advanced on behalf
of learned ACSC are totally misconceived and
the finding returned by both the courts below
are not tenable in law. The object and purpose
of pleadings and issues is to ensure that the
litigants come to trial with all issues clearly
defined and to prevent cases being expanded or
grounds being shifted during trial. Its object is
also to ensure that each side is fully alive to the
questions that are likely to be raised or
considered so that they may have an
opportunity of placing the relevant evidence
appropriate to the issues before the court for its
consideration. This Court has repeatedly held
that the pleadings are meant to give to each side
intimation of the case of other so that it may be
met, to enable courts to determine what is really
at issue between the parties, and to prevent any
deviation from the course which litigation on
particular causes must take.
38. In the present case, both the courts
below have failed to take into consideration the
evidence on record and the finding returned on
perverse grounds are not liable to be accepted.

39. In view of findings returned herein
above, the order dated 12.08.1997 passed by
Additional Commissioner, Judiciary, Faizabad
Division, Faizabad in Appeal No.47 (Ceiling)
as well as order dated 31.12.1993 passed by the
prescribed authority (Ceiling), Bahraich, in case
No.812 under sub Section 2 of Section 10 of
U.P. Imposition of Ceiling on Land Holdings
Act are wholly erroneous and are not
sustainable in the eyes of law and are hereby
quashed.

40. The writ petition succeeds and is
allowed.

41. The matter is remanded back to
the prescribed authority to lead evidence on the
subject matter involved in the present writ
petition and to record finding in regard to sale
deed that how it is a fake transaction, once it has
been executed by paying sufficient stamp duty
and on other points raised by the petitioners.

42. No order as to costs.
----------
(2025) 3 ILRA 843
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.03.2025

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ C No. 1005313 of 2013

Usha Devi @ Urmila Devi & Ors.
 ...Petitioners
Versus
Malti Devi & Ors. ...Respondents

Counsel for the Petitioners:
844 INDIAN LAW REPORTS ALLAHABAD SERIES
Lakshman Singh

Counsel for the Respondents:
G C Verma, Sunita Dwivedi

A.
Civil
Law
-Code
of
Civil
Procedure,1908 - Order IX Rule 13-Exparte
Decree-Sufficient
causeRestoration of suit-Petitioners sought to
set aside ex-parte judgment and decree
dated 24.10.2008 passed in a suit for
permanent
injunction,
claiming
nonservice of notice and lack of knowledge
of amendment in plaint-Trial court and
Appellate
Court
both rejected
their
application under Order IX Rule 13 CPCThe court held that "sufficient cause"
must be construed liberally where no
gross negligence or mala fide exists-It
was found that the petitioners had
promptly filed an application under
Order IX Rule 13 CPC, had contested the
suit earlier, and were dependent on their
counsel-The
court
emphasized
the
primacy of substantive justice over
technicalities and held that denial of
opportunity to contest caused potential
irreparable
loss-Accordingly
the
exparte decree was set aside, and the
original suit restored.(Para 1 to 37)

B.
It
is
well
settled
that
where
technicalities
are
pitted
against
substantive
justice,
it
is
substantive
justice which should be preferred as the
Court lean in favour of doing substantive
justice rather than to foreclose the rights
of the parties by adopting a hypertechnical view. (Para 28)

The writ petition is allowed. (E-6)

List of Cases cited:
1. Ram Nath Sao @ Ram Nath Sahu & ors. Vs
Gobardhan Sao & Ors., (2002) 3 SCC 195

2. Esha Bhattacharjee Vs M/C of Raghnathpur
Nafar Academy & Ors.(2013) 12 SCC 649

3. Kumari Sahu Vs Bhubanananda Saha & Ors.,
MANU/SCOR/15950/2025

4. Rafiq & anr. Vs Munshilal & anr. (1981) 2 SCC
788

5.
Revajeetu
Builders
&
Developers
Vs
Narayanaswamy & Sons & ors. (2009) 10 SCC
84

6. Vinod Seth Vs Devinder Bajaj & anr. (2010) 8
SCC 1

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Shri Lakshman Singh,
learned counsel for the petitioners and Ms.
Sunita Dwivedi, learned counsel appearing
for the private-respondents No.1 to 3.

2. The petitioners have approached
this Court seeking to assail the order dated
24.04.2013 passed by the Additional
District Judge, Court No.9, Pratapgarh in
Misc. Civil Appeal No.91 of 2011, whereby
an appeal preferred by the petitioners under
Order XLII Rule 1(d) CPC was dismissed,
as a consequence, the order passed by the
trial Court dated 17.09.2011, whereby the
application of the petitioners under Order
IX Rule 13 CPC was dismissed, was
affirmed.

3. The brief facts giving rise to the
instant
petition
are
being
noticed
hereinafter:-

4. The predecessor-in-interest of
the respondents No.1 to 3, namely
Gajendra Prasad had instituted a suit for
permanent injunction in the Court of Civil
Judge (Junior Division), Sadar, Pratapgarh.
The present petitioners were impleaded as
defendants No.3 and 4. The contentions of
the plaintiff/predecessor of the respondents
No.1 to 3 was that they are in the peaceful
possession of the property in dispute and on
the eastern side there was a drain which
was being utilized for the drainage of the
3 All. Usha Devi @ Urmila Devi & Ors. Vs. Malti Devi & Ors.
845
dirty water but the defendants in order to
expand their construction were attempting
to cover and destory the said drain and in
such circumstances, the suit for injunction
was filed seeking a decree of permanent
injunction.

5. Initially, the suit was contested
by the petitioners by filing their written
statement, however, thereafter, the matter
was set ex-parte on 22.11.2006. Ultimately,
the suit filed by the plaintiffs came to be
decided by an ex-parte judgment and
decree dated 24.10.2008.

6. The petitioners being aggrieved
against the ex-parte judgment and decree
dated 24.10.2008 moved an application
under Order IX Rule 13 CPC which came
to be registered as Misc. Case No.65/2008.
The grounds raised by the petitioners
were:-

(i) during pendency of the
suit, some of the defendants had
died and their legal heirs were not
brought on record, hence, the
judgment was bad as it was
pronounced against dead persons.
(ii) the suit proceedings had
been transferred from one Court to
the other, but no notice was issued
either to the defendants or their
counsel and for the said reason, the
defendants were not aware as to
where and how the proceedings
were being taken forward, hence, a
case of sufficient cause was made
out.
(iii) the plaintiffs had got
the plaint amended, but since the
suit had been set ex-parte, no notice
of the same was issued, hence, the
defendants were prevented from
sufficient cause from contesting the
proceedings and as soon as they
received the information regarding
ex-parte judgment and decree dated
24.10.2008, the petitioners had
moved an application which was
within
time
and
in
such
circumstances, the Court would
have taken a liberal view and the
application deserved to be allowed.

7. The said application came to be
contested and the original plaintiff filed
their written objection, the same was
considered by the trial Court, however, the
trial Court did not find favour with the
contentions of the defendants/petitioners.
Accordingly, by means of the order dated
17.09.2011, the application under Order IX
Rule 13 CPC was rejected.

8. The petitioners being aggrieved,
preferred an appeal in terms of Order 43
Rule 1(d) CPC and the same was registered
as Misc. Case No.91/2011 and the first
appellate Court also did not find favour
with the contentions of the petitioners and
dismissed the appeal by means of the order
dated 24.04.2013.

9. The petitioners, thereafter,
assailed the two orders in the instant
petition and primarily the contention is that
since the petitioners have a substantial case
on merit, the least that should have been
done was to have provided an opportunity
of hearing to the petitioners. The delay, if
any, could have been compensated in terms
of costs, however, this aspect of the matter
was not taken note of by the two Courts
while rejecting the application of the
petitioner under Order IX Rule 13 CPC.

10. It is further urged that since
there was never any contention raised on
behalf of the plaintiffs that the defendants
846 INDIAN LAW REPORTS ALLAHABAD SERIES
have encroached upon or have raised
constructions over the disputed land in
question and only after the matter was set
ex-parte on 22.11.2006 did the plaintiffs
move an application for amendment and
thereafter the plaintiffs included a prayer of
mandatory injunction seeking to direct the
defendants from removing the offending
constructions,
which
had
seriously
jeopardized the rights of the petitioners.

11. It is urged that this was also an
incorrect
statement
inasmuch
as
the
defendants had purchased the property
from their predecessor and they had already
raised constructions and the true and
correct facts were not brought on record by
the plaintiffs while instituting the suit and
in such circumstances, it was imperative
that at least an opportunity of hearing
should have been granted to the petitioners
and failing which the petitioners are
susceptible to suffer irreparable injury. For
the aforesaid reasons, it is urged that the
ex-parte orders deserves to be set aside.

12. Ms. Dwivedi, learned counsel
appearing for the private-respondents No.1
to
3
while
opposing
the
aforesaid
submissions has pointed out that three
grounds
which
were
raised
by
the
petitioners in their application under Order
IX Rule 13 CPC in itself are contrary to the
material on record and this has been
noticed by the two Courts while rejecting
the said application.

13. It is further urged that insofar
as the grounds that the suit was transferred
from one Court to other of which notice
was not sent to the defendants is concerned,
it has been pointed out that the respondents
No.1 to 3 had filed a supplementary
affidavit dated 28.08.2024 before this Court
and along with the said affidavit, the
certified copies of the order-sheets were
brought on record, which indicated that
after transfer, the file was received by the
transferee Court and the order-sheets dated
13.08.2008 clearly indicates that the
petitioners through counsel was present.

14. It is urged that in this light, it
cannot be said by the petitioners that they
were not aware of the proceedings. The
order-sheet
subsequent
thereto
dated
10.09.2008 also indicates that the counsel
for the defendants was present.

15. In the aforesaid circumstances,
where the defendants already had notice
and was aware of the proceedings, hence,
there was no requirement that at each and
every step notice should have been issued
to the defendants repeatedly.

16. It is further urged that insofar
as the non-service of the summons as far as
the other defendants are concerned that also
does hold water for the reason that it is the
case of the defendants that they had
purchased the property by means of the
sale-deed dated 21.08.2003 and the suit
came to be filed thereafter. If any of the
defendants had died, at best, it would have
been the successors of the aggrieved party,
who could take this plea, however, since
the defendants were contesting the claim of
the plaintiffs on their own merits, hence,
they are not permitted to espouse the cause
of the other co-defendants. Even otherwise,
once the property had been sold, there was
no requirement of sending notice to the
other defendants and as such the present set
of petitioners, who were co-defendants
cannot take the benefit of non-service of
notice to the other co-defendants, who
apparently had lost their rights, since, they
had transferred the property even prior to
the institution of the suit and on account of
3 All. Usha Devi @ Urmila Devi & Ors. Vs. Malti Devi & Ors.
847
non service of summons on the legal heirs
of the deceased party did not prejudice the
case of the present petitioners.

17. It is, thus, urged that for all the
aforesaid reasons, the order impugned do
not require any interference and the writ
petition deserves to be dismissed.

18. The Court has considered the
rival submissions and also perused the
material available on record.

19. The facts in between the
parties are not disputed inasmuch as the
suit was preferred by the plaintiffs wherein
the defendants had appeared and filed their
written statement. The proceedings were set
ex-parte
against
the
contesting
defendants/the
present
petitioners
on
22.11.2006.

20. The record would further
indicates that one of the co-defendants
from whom the petitioners had purchased
the property had died. Since, the sale had
already taken place prior to the institution
of the suit, accordingly, there was no
requirement for the legal heirs of the said
deceased-defendant
to
have
been
compulsorily served. Moreover, there is
another reason that the death of the codefendants is not going the impact the
rights of the present petitioners inasmuch
as the suit was for the relief of permanent
injunction.
Necessarily,
a
relief
of
permanent injunction is in personam and
not in rem. The plaintiffs are dominus litis
and it is always open for the said plaintiffs
to contest the suit for injunction against any
person against whom there is a threat. In
this regard, if the defendants, who were the
original owner of the property had died and
since he had transferred his rights in the
premises to the defendants, thus, there
could not have any impact on the rights of
the
present
petitioners,
unless
clear
prejudice
was
demonstrated,
which
needless to say could not be established.

21. It has also been indicated by
the learned counsel for the petitioners that
at any point of time the successors of the
original defendants who had sold the
property to the petitioners never came
forward to contest in terms of Order XXII
Rule 4 Sub-rule (4), where a party, who has
not contested the proceedings or did not file
its written statement, then with the leave of
the Courts, upon his death, it is not
necessary to bring his legal heirs on record.

22. In light of the aforesaid
propositions of law, the first submissions
of the learned counsel for the petitioners
that they were prejudiced because of not
issuing of notice to the other defendants
does not have any legs to stand and is
turned down.

23. The other submission made by
the learned counsel for the petitioners
regarding no notice being sent to the
petitioners or their counsel upon transfer of
the suit for one Court to another, this also
does not have much weight inasmuch as
from the certified copies of the ordersheets, which have been brought on record
by the private-respondents No.1 to 3 along
with the supplementary affidavit dated
28.08.2024 would indicate that the learned
counsel for the petitioners was present
before the transferee Court on 13.08.2008
as well as 10.09.2008. Once the presence of
their counsel was in the proceedings, then
to say that no notice was available or
known to the present petitioners also is not
substantiated.
Consequently,
the
said
submission of the learned counsel for the
petitioners also fails.
848 INDIAN LAW REPORTS ALLAHABAD SERIES
24. Lastly, the submission that the
suit came to be amended after the
proceedings were set ex-parte which has
impacted the rights of the plaintiffspetitioners
is
concerned,
if
this
is
examined,
it
would
reveal
that
the
proceedings
were
set
ex-parte
on
22.11.2006. The plaint came to the
amended in the year 2008 referring to a
cause of action which accrued in 2006.
Once the proceedings had been taken
forward ex-parte, it was either the duty of
the
petitioners
to
have
moved
an
appropriate application under Order IX
Rule 7 CPC to get the ex-parte order dated
22.11.2006 recalled.

25. Having skipped this remedy,
the effect would be that the said order dated
22.11.2006 merged with the ex-parte
judgment and decree passed by the trial
Court on 24.10.2008. Thereafter, the
petitioners had a remedy of Order IX Rule
13 CPC and in furtherance thereof, an
application under Order IX Rule 13 CPC
was
moved
by
the
petitioners
on
04.11.2008 i.e. within two weeks of the
passing of the ex-parte judgment and
decree dated 24.10.2008.

26. In the aforesaid circumstances,
where the petitioners had approached the
Court without much delay inasmuch as the
said ex-parte decree came to the knowledge
of the petitioners and the said decree on
account of the amendment made in the
plaint had the impact of raising a cloud
over the constructions made by the
defendants which was already pleaded in
the written statement filed on 23.05.2006,
apparently
was
a
contestable
plea.
However, as per the amended plaint, it was
indicated by the plaintiffs that the offending
construction had been raised only during
pendency of the suit in the year 2006,
which shall be evident from the copy of the
plaint which is at running page 63 of the
paper-book and in Paragraph-10 it states
that the cause for removing the offending
constructions accrued on 21.01.2006.

27. In this view of the matter,
where certain conflicting claims are to be
adjudicated
and
in
the
aforesaid
circumstances and the averments in the
application under Order IX Rule 13 CPC,
this Court does not find that the conduct of
the defendants was so negligent that it did
not deserve an opportunity of hearing. The
suit had been contested on behalf of the
defendants by the petitioner No.1 Usha
Devi and it is stated that she was dependent
on her counsel as her husband was in
service outside the District of Pratapgarh.

28. It is now well settled that
where technicalities are pitted against
substantive justice, it is substantive justice
which should be preferred as the Court lean
in favour of doing substantive justice rather
than to foreclose the rights of the parties by
adopting a hyper-technical view.

29. It is not disputed that the
application under Order IX Rule 13 CPC
came to be filed within two weeks of
passing of the ex-parte judgment. It is
clearly mentioned in the application under
Order IX Rule 13 CPC that the petitioner
No.1 Usha Devi was dependent on her
counsel in absence of her husband and she
had no other means of knowing about the
proceedings except what was told to her by
her counsel. The Court is required to see
whether the petitioners were prevented by
sufficient cause for appearing in the case
which led to the ex-parte decree

30. The word 'sufficient cause'
came to be considered by the Apex Court in
3 All. Usha Devi @ Urmila Devi & Ors. Vs. Malti Devi & Ors.
849
Ram Nath Sao alias Ram Nath Sahu &
Ors. v. Gobardhan Sao & Ors., (2002) 3
SCC 195 and it was held as under:-

"12. Thus it becomes plain
that
the
expression
"sufficient
cause" within the meaning of
Section 5 of the Act or Order 22
Rule 9 of the Code or any other
similar provision should receive a
liberal
construction
so
as
to
advance substantial justice when no
negligence or inaction or want of
bona fides is imputable to a party.
In
a
particular
case
whether
explanation
furnished
would
constitute "sufficient cause" or not
will be dependent upon facts of
each case. There cannot be a
straitjacket formula for accepting or
rejecting explanation furnished for
the delay caused in taking steps.
But one thing is clear that the
courts should not proceed with the
tendency of finding fault with the
cause shown and reject the petition
by a slipshod order in overjubilation
of
disposal
drive.
Acceptance
of
explanation
furnished should be the rule and
refusal, an exception, more so
when no negligence or inaction or
want of bona fides can be imputed
to the defaulting party. On the other
hand, while considering the matter
the courts should not lose sight of
the fact that by not taking steps
within
the
time
prescribed
a
valuable right has accrued to the
other party which should not be
lightly defeated by condoning delay
in a routine-like manner. However,
by
taking
a
pedantic
and
hypertechnical view of the matter
the explanation furnished should
not be rejected when stakes are
high and/or arguable points of facts
and law are involved in the case,
causing
enormous
loss
and
irreparable injury to the party
against whom the lis terminates,
either by default or inaction and
defeating valuable right of such a
party to have the decision on merit.
While
considering
the
matter,
courts have to strike a balance
between resultant effect of the
order it is going to pass upon the
parties either way."

31. The Apex Court in Esha
Bhattacharjee v. Managing Committee of
Raghnathpur Nafar Academy & Ors.,
(2013) 12 SCC 649 has held as under:-

"21. From the aforesaid
authorities the principles that can
broadly be culled out are:
21.1. (i) There should be a
liberal, pragmatic, justice-oriented,
non-pedantic
approach
while
dealing with an application for
condonation of delay, for the courts
are
not
supposed
to
legalise
injustice but are obliged to remove
injustice.
21.2.
(ii)
The
terms
"sufficient
cause"
should
be
understood in their proper spirit,
philosophy and purpose regard
being had to the fact that these
terms are basically elastic and are
to be applied in proper perspective
to the obtaining fact-situation.

21.3.
(iii)
Substantial
justice being paramount and pivotal
the technical considerations should
not be given undue and uncalled for
emphasis.
850 INDIAN LAW REPORTS ALLAHABAD SERIES
21.4. (iv) No presumption
can be attached to deliberate
causation of delay but, gross
negligence on the part of the
counsel or litigant is to be taken
note of.
21.5. (v) Lack of bona fides
imputable to a party seeking
condonation
of
delay
is
a
significant and relevant fact.
21.6. (vi) It is to be kept in
mind that adherence to strict proof
should not affect public justice and
cause public mischief because the
courts are required to be vigilant so
that in the ultimate eventuate there
is no real failure of justice.
21.7. (vii) The concept of
liberal approach has to encapsulate
the conception of reasonableness
and it cannot be allowed a totally
unfettered free play.
21.8. (viii) There is a
distinction
between
inordinate
delay and a delay of short duration
or few days, for to the former
doctrine of prejudice is attracted
whereas to the latter it may not be
attracted. That apart, the first one
warrants strict approach whereas
the second calls for a liberal
delineation.
21.9. (ix) The conduct,
behaviour and attitude of a party
relating
to
its
inaction
or
negligence are relevant factors to
be taken into consideration. It is so
as the fundamental principle is that
the courts are required to weigh the
scale of balance of justice in
respect of both parties and the said
principle cannot be given a total go
by in the name of liberal approach.
21.10.
(x)
If
the
explanation offered is concocted or
the
grounds
urged
in
the
application are fanciful, the courts
should be vigilant not to expose the
other side unnecessarily to face
such a litigation.
21.11. (xi) It is to be borne
in mind that no one gets away with
fraud,
misrepresentation
or
interpolation by taking recourse to
the
technicalities
of
law
of
limitation.
21.12.
(xii) The
entire
gamut of facts are to be carefully
scrutinised and the approach should
be based on the paradigm of
judicial discretion which is founded
on objective reasoning and not on
individual perception.
21.13. (xiii) The State or a
public
body
or
an
entity
representing a collective cause
should be given some acceptable
latitude.
22.
To
the
aforesaid
principles we may add some more
guidelines taking note of the
present day scenario. They are:
22.1. (a) An application for
condonation of delay should be
drafted with careful concern and
not
in
a
haphazard
manner
harbouring the notion that the
courts are required to condone
delay on the bedrock of the
principle that adjudication of a lis
on merits is seminal to justice
dispensation system.
22.2. (b) An application for
condonation of delay should not be
dealt with in a routine manner on
the base of individual philosophy
which is basically subjective.
22.3. (c) Though no precise
formula can be laid down regard
being had to the concept of judicial
3 All. Usha Devi @ Urmila Devi & Ors. Vs. Malti Devi & Ors.
851
discretion, yet a conscious effort
for
achieving
consistency
and
collegiality of the adjudicatory
system should be made as that is
the ultimate institutional motto.
22.4. (d) The increasing
tendency to perceive delay as a
non-serious matter and, hence,
lackadaisical propensity can be
exhibited in a nonchalant manner
requires to be curbed, of course,
within legal parameters."

32. Very recently, the Apex Court
in Kumari Sahu v. Bhubanananda Sahu
& Ors., MANU/SCOR/15950/2025 has
held as under:-

"10. We are aware of the
caution that needs to be exercised
in matters relating to condonation
of delay of longer durations.
However, it must be noted that
balancing of scales of justice
becomes imperative when it comes
to such matters, especially given
the socio-economic background of
a
large
number
of
India's
population who approach these
doors of justice as litigants.
11. We find it relevant to
produce here a paragraph from
Rafiq and Another v. Munshilal
and Another (1981) 2 SCC 788, a
case which had a very similar
factual matrix regarding delay due
to Counsel's fault, the following
was observed:
"3. The disturbing feature
of the case is that under our present
adversary legal system where the
parties generally appear through
their advocates, the obligation of
the parties is to select his advocate,
brief him, pay the fees demanded
by him and then trust the learned
Advocate to do the rest of the
things. The party may be a villager
or may belong to a rural area and
may have no knowledge of the
court's procedure. After engaging a
lawyer, the party may remain
supremely confident that the lawyer
will look after his interest. At the
time of the hearing of the appeal,
the personal appearance of the
party is not only not required but
hardly useful. Therefore, the party
having done everything in his
power to effectively participate in
the proceedings can rest assured
that he has neither to go to the High
Court to inquire as to what is
happening in the High Court with
regard to his appeal nor is he to act
as a watchdog of the advocate that
the latter appears in the matter
when it is listed. It is no part of his
job. Mr A.K. Sanghi stated that a
practice has grown up in the High
Court of Allahabad amongst the
lawyers that they remain absent
when they do not like a particular
Bench. Maybe, we do not know, he
is better informed in this matter.
Ignorance in this behalf is our bliss.
Even if we do not put our seal of
imprimatur
on
the
alleged
practice by dismissing this matter
which may discourage such a
tendency, would it not bring
justice
delivery
system
into
disrepute. What is the fault of the
party
who
having
done
everything in his power expected
of him would suffer because of
the default of his advocate. If we
reject this appeal, as Mr A.K.
Sanghi invited us to do, the only
one who would suffer would not
852 INDIAN LAW REPORTS ALLAHABAD SERIES
be the lawyer who did not appear
but the party whose interest he
represented. The problem that
agitates us is whether it is proper
that the party should suffer for
the inaction, deliberate omission,
or misdemeanour of his agent.
The answer obviously is in the
negative. Maybe that the learned
Advocate
absented
himself
deliberately or intentionally. We
have no material for ascertaining
that aspect of the matter. We say
nothing more on that aspect of
the matter. However, we cannot
be a party to an innocent party
suffering
injustice
merely
because
his
chosen
advocate
defaulted. Therefore, we allow
this appeal, set aside the order of
the High Court both dismissing
the appeal and refusing to recall
that order. We direct that the
appeal be restored to its original
number in the High Court and be
disposed of according to law. If
there is a stay of dispossession it
will continue till the disposal of the
matter by the High Court. There
remains the question as to who
shall
pay
the
costs
of
the
respondent here. As we feel that the
party is not responsible because he
has done whatever was possible
and was in his power to do, the
costs amounting to Rs 200 should
be recovered from the advocate
who absented himself. The right to
execute that order is reserved with
the party represented by Mr A.K.
Sanghi."
(Emphasis is mine)
12. Even though the abovequoted case law is from the year
1981, we cannot deny the fact that
the ground reality of a considerable
proportion
of
litigants
being
completely dependent on their
counsel
remains
the
same,
especially in regions with lower
economic
and
educational
prowess."

33. Thus, the principles that can be
culled out from the aforesaid decisions and
if applied to the instant case would reveal
that the word 'sufficient cause' must be
construed liberally and the explanation
furnished must be accepted unless gross
negligence can be imputed to the party
seeking indulgence of the Court.

34. In the instant case, the reliance
and dependence on the counsel is not
disputed. Husband of Usha Devi being
away on account of work is not disputed. It
is also not disputed that Usha Devi and her
husband did not have a dilatory attitude
while contesting the proceedings and apart
from what they were told or advised by
their counsel, they had no other means of
gaining knowledge coupled with the fact
that the application under Order IX Rule 13
CPC was moved within time. Hence, this
Court is of the view that an opportunity
should have been granted to the petitioners
rather than condemning them unheard.

35. The record also shows that a
Coordinate Bench of this Court vide order
dated 09.09.2013 had protected the rights
and the execution of the ex-parte decree has
not
been
done.
The
delay
in
the
proceedings
can
be
mitigated
by
compensating the private-respondents by
awarding costs in light of the principles laid
down by the Apex Court in Revajeetu
Builders
and
Developers
v.
Narayanaswamy & Sons and others,
(2009) 10 SCC 84 and Vinod Seth v.
3 All. Raju Maurya Vs. State of U.P. & Ors.
853
Devinder Bajaj and another,
(2010) 8 SCC 1.

36. In the aforesaid circumstances,
this Court is of the view that ends of justice
can be met by allowing the writ petition,
setting aside the ex-parte judgment and
decree dated 24.10.2008 on payment of
costs of Rs.30,000/- [Rs.20,000/- shall be
payable to the plaintiffs and Rs.10,000/-
shall be deposited with the District Legal
Service Authority, Pratapgarh] within a
period of two weeks from today. The
proceedings of O.S. No.1486/2003 shall
stand restored to its original number where
the parties shall appear before the trial
Court on 16.04.2025. The suit shall
proceed from the stage the plaintiffs had
moved an application for amendment. The
defendants shall be given reasonable
opportunity to contest the suit including by
filing their objections to the amendment
application. The parties shall be free to lead
fresh evidence. The parties are directed to
cooperate in the proceedings of O.S.
No.1486/2003. Any party choosing to
misuse the liberty shall be saddled with
costs to be enhanced progressively. The
trial Court shall endeavour to decided the
O.S.
No.1486/2003
expeditiously
preferably within a period of six months
from the date parties appear before the trial
Court. It is made clear that if the costs, as
directed by this Court, are not paid then the
proceedings shall not be revived.

37.

With
the
aforesaid
observations, the writ petition is allowed.
----------
(2025) 3 ILRA 853
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.12.2024

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Application U/S 482 No. 25039 of 2024

Raju Maurya ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
R P Jain

Counsel for the Opposite Parties:
G.A., Ranjana Singh, Shesh Nath Singh
Yadav

Criminal
Law-The
Code
of
Criminal
Procedure,1973-Sections
82
&
83
Application for release of the attached
goods-
In
the
present
case,
without
determining the truth- whether it was a case of
elopement or active companionship the police
charge-sheeted eight family members without
ascertaining the facts from the boy against
whom allegations were made regarding the
elopement of a young girl. Furthermore, the
police attached all movable and immovable
goods present in the family's house without
verifying the ownership of the property---The
court overlooked the critical fact that the seized
property did
not belong to the alleged
absconder--- There is an urgent need for both
trial courts and the police to adhere to minimum
legal and procedural standards while issuing and
executing judicial orders. Such orders must be
passed and implemented in a manner that is
fair, lawful, and transparent, ensuring the
protection of constitutional rights and upholding
public trust in the judicial system particularly
crucial in matters involving (i) the issuance of
proclamations for absconding persons, (ii) the
attachment of property, (iii) the identification
and seizure of assets belonging to proclaimed
offenders, and (iv) the adjudication of claims
and objections related to such attachments. By
ensuring strict adherence to legal principles and
procedural safeguards, the judiciary and law
enforcement agencies can uphold the rule of
law, protect individual rights, and restore public
confidence in the justice system---Proceedings
against the applicant and other accused persons
stand quashed. (Para 19, 26 30 & 32)