# Vidya Sagar and others v. Additional District Judge, Court No.2, Lucknow and others

- **Citation:** (2011) 1 ILRA 141
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-04
- **Bench:** Rajiv Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidya-sagar-and-others-v-additional-district-judge-court-no-2-lucknow-and-others-41809
- **Pages:** 7

## Headnote

Code of Civil Procedure-order 9 rule-13Application to recall ex parte Decreeallowed with condition to file written
statement by the date fixed-on adjourn
date neither defendant nor his counsel
appeared nor written statement filedcourt decided suit ex parte-application
under order 9 rule 13 rejected on
premises when suit decided under order
VIII
Rule
10-application
not
maintainable held-totally misconceivedneither the petitioner precluded the Trail
Court to examine the witnesses, nor the
Trail
Court
followed
the
procedure
prescribed
under
law-suit
decreed
outrightly
in
absence
of
petitionerclearly came within the ambit of order 9
rule
13-order
Set-a-side-subject
to
payment of cost.

Held: Para 19

It is also relevant to mention that the
impugned judgment dated 3.1.1994 was
passed for default of appearance of the
petitioners and by not even examining
the evidence, if any, on behalf of the
respondent.
The
requirement
under
142 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Order 8 Rule 10 of the Code to
pronounce a judgment against the party
who fails to present a written statement
does not permit the court not to examine
the evidence on record and pass a
mechanical one sided order without
applying its mind. Accordingly it cannot
be said to be a judgment , on the merits,
but only a decree against the petitioners
owing to its failure to file a written
statement and as such it will be termed
an an ex-parte decree.
Case law discussed:
[2000 (18) LCD 336]; [2005 (23) LCD 1250];
[AIR 1991 Patna 60]; [AIR 1975 Allahabad
209]; AIR 1981 Mad. 258; AIR 1991 AP 69;
AIR 1988 Kerala 304;

## Text

1 All] Vidya Sagar and others V. Additional District Judge, Court No.2, Lucknow and others 141
plans were sanctioned. He was not cared
to obtain copies of building plans to
show as to whether the entire land or
only a part is proposed to be developed.
The delay on his part in getting the
property partitioned and further in not
claiming the relief in partition of suit was
rightly accepted as a ground to reject the
relief of injunction.

18. The pleadings in the plaint
clearly show that the building material
has been accumulated on only a part
(eastern) of the plot namely Khasra No.
292 and that some labourers had started
laying down the road. The activity of the
defendants did not amount to usurping
the entire land which may defeat the
rights of the plaintiffs on partition.

19. The plaintiff did not claim any
relief either in the plaint or in the
injunction application to restrain the
defendants from creating third party
rights over the land, nor there was any
such contention made by the counsel for
plaintiff-appellant.

20. For the aforesaid reasons, we do
not find that the trial court committed
any error of facts and law in rejecting the
injunction application.

21. The First Appeal From Order is
dismissed, with observations that the suit
may be decided expeditiously.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.02.2011

BEFORE
THE HON'BLE RAJIV SHARMA, J.

Misc. Single No. - 510 of 2006

Vidya Sagar and others ...Petitioners
Versus
Additional District Judge, Court No.2,
Lucknow and others
 ...Respondents

Counsel for the Petitioner:
Sri Mohd. Arif Khan
Sri Mohiuddin Khan

Counsel for the Respondents:
Sri M.A.Khan
Sri Rakesh Pandey
C.S.C.

Code of Civil Procedure-order 9 rule-13Application to recall ex parte Decreeallowed with condition to file written
statement by the date fixed-on adjourn
date neither defendant nor his counsel
appeared nor written statement filedcourt decided suit ex parte-application
under order 9 rule 13 rejected on
premises when suit decided under order
VIII
Rule
10-application
not
maintainable held-totally misconceivedneither the petitioner precluded the Trail
Court to examine the witnesses, nor the
Trail
Court
followed
the
procedure
prescribed
under
law-suit
decreed
outrightly
in
absence
of
petitionerclearly came within the ambit of order 9
rule
13-order
Set-a-side-subject
to
payment of cost.

Held: Para 19

It is also relevant to mention that the
impugned judgment dated 3.1.1994 was
passed for default of appearance of the
petitioners and by not even examining
the evidence, if any, on behalf of the
respondent.
The
requirement
under
142 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Order 8 Rule 10 of the Code to
pronounce a judgment against the party
who fails to present a written statement
does not permit the court not to examine
the evidence on record and pass a
mechanical one sided order without
applying its mind. Accordingly it cannot
be said to be a judgment , on the merits,
but only a decree against the petitioners
owing to its failure to file a written
statement and as such it will be termed
an an ex-parte decree.
Case law discussed:
[2000 (18) LCD 336]; [2005 (23) LCD 1250];
[AIR 1991 Patna 60]; [AIR 1975 Allahabad
209]; AIR 1981 Mad. 258; AIR 1991 AP 69;
AIR 1988 Kerala 304;

(Delivered by Hon'ble Rajiv Sharma, J. )

1. Heard Mohd. Arif Khan, Senior
Advocate, assisted by Sri Mohiuddin
Khan, learned Counsel for the petitioners,
Sri Rakesh Pandey, Counsel for the
opposite party No.3 and Standing Counsel
for the State.

2. By means of instant writ petition,
the petitioners have assailed the orders
dated 16.12.2005 passed by the opposite
party No.1-Additional District Judge,
Court No.2, Lucknow, upholding the
order dated 3.2.1997 (Annexure No.7)
and the order dated 3.1.1994 passed by
the opposite party No.2-IInd Additional
Civil Judge, Lucknow.

3. Brief facts, giving rise to the
instant writ petition, are that opposite
party No.-3-K.S. Rawat filed a suit for
possession
by
demolition
of
the
constructions, which was registered as
Regular Suit No. 289 of 1986, against the
petitioners and opposite parties Nos. 4 to
6, inter-alia stating therein that he had
purchased the plot No. 241, measuring
0.03 biswas through a registered sale deed
from one Smt. Punia and was enjoying
possession but the petitioners had forcibly
took the possession and raised boundary
wall thereon. In the suit proceedings,
notice was issued but as opposite party
No.3 did not give correct address of the
petitioners and as such, notice was not
served upon the petitioners. Subsequently,
service was effected on the petitioners
through publication. Ultimately, the said
suit was decreed ex parte on 23.3.1990.

4. On coming to know about the exparte decree dated 23.3.1990, petitioners
moved an application under Order IX
Rule 13 of the Code of the Civil
Procedure, which was registered as Misc.
Case No. 14-C of 1990, for recalling the
aforesaid order dated 23.3.1990. The
Additional Civil Judge, Lucknow, on
being satisfied with the cause shown in
the recall application, vide order dated
5.11.1993, set-aside the ex-parte decree
dated 23.3.1990 and restored the Regular
Suit No. 289 of 1986 to its original
number
and
directed
the
petitioners/defendants to file their written
statement prior to 23.11.1993.

5. Counsel for the petitioners has
submitted
that
petitioners/defendants
could not file their written statement prior
to 23.11.1993 as their Counsel had gone
out of station and as such, the case was
fixed for filing written statement for
3.1.1994.
On
3.1.1994,
the
petitioners/defendants filed an application
for adjournment but the Additional Civil
Judge, Lucknow, while rejecting the
adjournment sought by the petitioners,
vacated the stay order, proceeded under
Order VIII Rule 10 of the Code of the
Civil Procedure and further decreed the
suit ex-parte. Consequently, petitioners
were directed to deliver the possession of
the land in question to the opposite party
1 All] Vidya Sagar and others V. Additional District Judge, Court No.2, Lucknow and others 143
No.3, failing which, possession will be
given through the Court.

6. Under these circumstances,
petitioners filed another application for
recall of the ex parte decree dated
3.1.1994 under Order IX Rule 13 of the
Code of Civil Procedure. The Additional
Civil Judge, Lucknow, rejected the said
application for recall by the order dated
3.2.1997 on the ground that the order
dated 5.11.1993 was conditional one and
the ex-parte decree dated 23.3.1990 was
set-aside subject to the condition that the
petitioners/defendants should file their
written statement prior to 23.11.1993,
which they had failed to comply.

7. Aggrieved by the aforesaid order
dated
3.2.1997,
petitioners/defendants
filed an appeal, which was registered as
Misc. Appeal No. 44 of 1997. In appeal it
was urged that the order dated 5.11.1993,
was not a conditional one and further a
litigant cannot be penalized for the
inaction or negligent on the part of his
Counsel. The Additional District Judge,
Lucknow, vide order dated 16.12.2005,
rejected the appeal and held that while
decreeing the suit filed by the opposite
party No.3, the trial court had proceeded
under Order VIII Rule 10 of the Code of
Civil
Procedure
and
as
such
the
application made by the petitioners under
Order IX Rule 13 of the Code of Civil
Procedure was not maintainable.

8. Feeling aggrieved by the orders
dated 16.12.2005 and the order dated
3.1.1994, petitioners have filed the instant
writ petition inter alia on the ground that
the opposite parties Nos. 1 and 2, while
rejecting the appeal and the application
for setting-aside ex parte decree, have
relied on the past conduct of a party
which cannot be the sole ground as the
Court's discretion is to be exercised
judicially and as such, the trial court had
erred in law in not granting time to the
petitioners to file written statement and
further proceeded to decide the suit under
Order VIII Rule 10 of the Code of Civil
Procedure.

9. Relying upon the judgments of
the Apex Court rendered in the case of
Pradeep Narain Sharma and another
Versus Satya Prakash Pandey [2000 (18)
LCD 336 and Salem Advocate Bar
Association, Tamil Nadu Versus Union
of India [2005 (23) LCD 1250], learned
Counsel for the petitioners submits that
Order VIII Rule 10 of the Code of
Procedure
does
not
prescribe
that
whenever there is a failure to file written
statement, the Court shall pronounce
judgment against the defendant. However,
it confers a discretion on the court either
to pronounce a judgment or to pass such
order as it may think fit. Further, in case
an extension of time is asked for, Court
has power to extend the time to file
written statement within the scope and
ambit of Rule 1 of Order VIII, which
provides for filing of written statement by
the defendant at or before the first hearing
or within such time as the Court may
permit and such extension of time is also
implicit in Rule 10 within the expression
"or make such order in relation to the suit
as it think fit". Thus it is not mandatory to
pronounce the judgment on the failure to
file written statement. It is discretionary
and the discretion of the Court is always a
judicial
discretion
to
be
exercised
judiciously.

10. Learned Counsel for the
petitioners submits that it is a settled law
that the Courts while proceeding with the
144 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
case under Order VIII Rule 10 of the
Code of Civil Procedure for the default of
the defendant in filing the written
statement should call upon the plaintiff to
adduce evidence to prove his case and
should apply its mind to the facts and
evidence to arrive at a conclusion,
whether the plaintiff is entitled to some
relief in the suit or not. He submits that
the petitioners are still in possession over
the premises in dispute.

11. On the other hand, learned
Counsel for the opposite party No.3
submits that the Court below had afforded
opportunity to the petitioners by passing a
conditional order to the effect that prior to
23.11.1993, they should file written
statement and the case was listed for
23.11.1993
for
framing
issues
but
petitioners did not file any written
statement and had sought adjournment by
moving an application, wherein no reason
was given for not filing any written
statement prior to 23.11.1993 as directed
by the Court and as such, on 23.11.1993,
the case was adjourned for 3.1.1994 but
even then, they did not file written
statement. Furthermore, no reason was
assigned as to why written statement was
not prepared and as such, the conduct of
the petitioners shows that they were only
interested in abusing the process of law
and in delaying the proceeding of the suit.
He submits that inspite of sufficient
opportunity having being provided to the
petitioners, they have not filed the written
statement for considerable long period
and as such, the trial Court proceeded in
accordance with the procedure prescribed
under the Code and decreed the suit..

12. It has been argued on behalf of
the contesting respondent that where the
petitioners have sought adjournment by
moving an application but did not file
written statement after being granted
adjournment and the judgment followed
by a decree was passed, it cannot be
called an ex parte decree within the
meaning of Order IX Rule 13 of the Code
of Civil Procedure in view of the
amended provisions of Order VIII Rule
10 and as such, there would be no need to
fix any date for ex-parte hearing. Thus,
the application under Order IX Rule 13
for setting aside the ex-parte decree
would not be maintainable as the decree
passed was not an ex parte decree. In
support of the aforesaid submission,
learned Counsel for the respondent has
relied upon the judgment of Apex Court
rendered in the case of Satya Narayan
Sah Vs. Brij Gopal Mundra [AIR 1991
Patna 60] and Rudra Nath Mishra Versus
Kashi Nath Mishra and others [AIR
1975 Allahabad 209].

13. Thus the sole question involved
in this writ petition is as to whether the
decree
passed
by
the
court
after
proceeding under Order 8 Rule 10 of the
Code of Civil Procedure is any ex-parte
decree and as to whether application
udner Order 9 Rule 13 is maintainable or
not.

14. First, I would examine Rudra
Nath Mishra's (supra) case relied upon by
the Counsel for the respondent. In this
case, the case had been adjourned at the
instance of the Court. On the adjourned
date counsel for defendant moved the
Court for a further adjournment. The
application was rejected and the Court
proceeded against the defendant and
decreed the suit by using the words "exparte". The court observed that the
defendant on whose behalf his counsel
moved an application for adjournment,
1 All] Vidya Sagar and others V. Additional District Judge, Court No.2, Lucknow and others 145
would be deemed to have been present on
that date and it could not be said that the
suit
was
decided
in
his
absence.
Therefore, the decree passed against the
defendant will be deemed to be a decree
passed on merits and cannot be termed as
an ex-parte. . On the contrary, in the
instant case, the time for filing written
statement
was
granted
but
written
statement was not filed and as such Court
proceeded under Order VIII Rule 10 of
the Code of Civil Procedure. Therefore,
this case is distinguishable and cannot be
applied.

15. Similarly, the decision rendered
by the Patna High Court, on in Satya
Narain Sah v. Brij Gopal Mundra; AIR
1991 Patna 60 cannot be made applicable
in the instant case as in the first part of
Rule 13 of Order 9 it is clearly indicated
that 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. The expression "in any case in
which a decree is passed ex-parte against
a defendant" obviously refers to a case in
which a decree is infact, passed ex parte
against a defendant.

16. In my considered opinion on the
failure of the defendants and their Counsel
to appear in Court on the adjourned date of
hearing of the suit, and its disposal under
Order 8 Rule 10, it shall be treated as a
disposal in accordance with Order 17 Rule
2 and it would be an ex parte decree passed
under Order 8 Rule 10 and it shall not be
treated differently from any other ex-parte
decree and the same is liable to be set-aside
under Order 9 Rule 13 of the Code of Civil
Procedure.

17. The application of the provisions
of Order 8 Rule 10 CPC results in a decree
not by admission but owing to the default of
a defendant to file a written statement which
in its real meaning and substance is only an
ex-parte decree. In my considered opinion
when the trial court proceeds under Order 8
Rule 10 for defendant's default and passes a
decree, it is an ex parte decree covered by
Order 9 Rule 13. My above view is fortified
with the decision of the Madras High Court
in
N.Jayaraman
vs
M/s
Glaxo
Laboratories India ltd; AIR 1981 Mad.
258 wherein the Court held in paragraph 6
of the report as under"-

"The use of the words " in any case in
which a decree is passed ex parte is wide
enough to cover all cases of ex parte
decrees, no matter for what reason such an
ex-parte decree has been passed. In the
absence, therefore, of any restriction with
the reference to the applicability of the
provisions of Order 9 Rule 13 CPC to cases
covered by Order 9 Rule 6 CPC. It is not
possible to construe the provisions of O 9
Rule 13 CPC narrowly and to hold that the
decree, as in the present case, cannot be
termed as an ex parte decree because the
procedure under Order 9 Rule 6 CPC has
not been followed."

It may be added that Andhra Pradesh
High Court in the case of Innovation
Apartments Flat Owners Association vs
M/s Innovation Associates; AIR 1991 AP
69 held as under :-

" The provisions of O.9, R.13 can be
invoked in any case in which a decree is
passed 'ex-parte' and the question whether
the ex-parte decree was passed in view of
non-filing of the written statement or
otherwise is of no consequence. The
objective in doing so is to avoid driving the
146 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
parties to file a regular appeal involving a
lot of expenditure and waste of time. Where
the lower Court disposed of the matter
under O.8, R.10, C.P.C. decreeing the suit at
the stage when written statement was not
filed, the decree would amount to ex parte
decree and attract provisions of O.9, R.10."

In A.K.P.Haridas vs. V.A.Madhavi
Amma and others; AIR 1988 Kerala 304,
the court observed that the remedy under
Order 9 Rule 13 and that by way of appeal
are not inconsistent, or mutually exclusive.
There is no bar in resorting to both the
remedies simultaneously or any of them
alone. The relevant paragraph reads as
under:-

"There is no bar in resorting to both
the remedies simultaneously or any of them
alone. Only thing is that when both
remedies are attempted and one succeeds
the other other becomes infructuous since
the object and effect of both is the same.
Availability of the remedy by way of appeal
is no bar to an application under O.9, R.13,
if such a remedy is also available to the
party. For example when the defendant is
set ex parte under O.9, R. 6 and an ex parte
decree passed, though that decree is
appealable, an application under O.9, R.13
also will lie. The real question for
consideration
is
only
whether
an
application under O.9, Rule13 will lie.

18. Thus it is imminently clear that a
decree passed for defendant's default in
filing written statement is an ex parte decree
duly comes within the ambit of Order 9
Rule 13 and as such an application to set
aside
under
Order
9
Rule
13
is
maintainable.

19. It is also relevant to mention that
the impugned judgment dated 3.1.1994 was
passed for default of appearance of the
petitioners and by not even examining the
evidence, if any, on behalf of the
respondent. The requirement under Order 8
Rule 10 of the Code to pronounce a
judgment against the party who fails to
present a written statement does not permit
the court not to examine the evidence on
record and pass a mechanical one sided
order
without
applying
its
mind.
Accordingly it cannot be said to be a
judgment , on the merits, but only a decree
against the petitioners owing to its failure to
file a written statement and as such it will be
termed an an ex-parte decree.

20. For the reasons aforesaid, the
court below erred in holding that the
application Order 9 Rule 13 is not
maintainable and rejected the same. The
Appellate Court also committed an error in
approving
the
same.
Therefore,
the
impugned orders suffer from infirmities and
are liable to be quashed.

21. Accordingly, the writ petition is
allowed and the impugned order dated
16.12.2005 passed by Additional District
Judge, Lucknow and the order dated
3.2.1997 and 3.1.1994 passed by II
Additional Civil Judge, Lucknow are
hereby quashed. The Trial Court is directed
to decide the suit on merits expeditiously
provided the petitioners pay a sum of Rs.
8000/- as costs within a period of three
months from the date of issue of certified
copy of this order. It is further provided that
out of Rs.8000/-, Rs. 5000/- shall be paid to
the opposite party No.3 and Rs. 3000/- shall
be transmitted to the Mediation and
Conciliation Centre, High Court, Lucknow
Bench, Lucknow.
---------
1 All] Shanti Devi V. State of U.P
147
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.02.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Criminal Misc. Case No.525 of 2011

Shanti Devi
 ...Petitioner/Informant
Versus
State of U.P.

 ...Opp.parties.

Code of Criminal Procedure-Section-482on application U/S 156(3) Magistrate
instead
of
directing
the
Police
to
investigate and register the case-treated
as complaint case challenged-by treating
the application as complaint whether
Magistrate committed any illegality-held-
'No'-direction for investigation by Police is
pre-cognizance and similar investigation
under Section 202 is post cognizance-No
illegality in order passed by Magistratepetition dismissed.

Held: Para 5

In the light of the aforesaid observations, I
am of the view that the learned Magistrate
has not committed any error in taking
cognizance in the matter and proceeding
for enquiry. Therefore, the petition is
dismissed.
Case law discussed:
2010 (71) ACC 446; 2007 (59) ACC 739 (DB)
(All); 2001 (Suppl.) ACC 957 (SC); Smt. Mona
Panwar versus The Hon'ble High Court of
Judicature at Allahabad and others, Criminal
Appeal No.298 of 2011, decided on February 02,
2011; 2010 (4) SCC 185

(Delivered by Hon'ble Shri Narayan Shukla, J.)

1.

Heard
Mr.Murli
Manohar
Srivastava,
learned
counsel
for
the
petitioner as well as Mr.Rajendra Kumar
Dwivedi, learned Additional Government
Advocate for the State.

2. The petitioner has challenged the
order dated 18th of May, 2010, passed by
the Additional Chief Judicial Magistrate-V,
Court
No.29,
Lucknow
on
Misc.
Application No.58 of 2010, moved under
Section 156(3) of the Code of Criminal
Procedure, on the ground that the learned
Magistrate has wrongly converted the
application into complaint as the provisions
of Section 156(3) of the Code of Criminal
Procedure as well as provisions of Chapter
15 of the Code of Criminal Procedure have
no co-relationship to each other, they are
different and distinct provisions absolutely
providing a different procedure. In support
of his submission he placed reliance upon
several decisions of this court as well as the
Hon'ble Supreme Court, which are referred
to hereunder:-

(1) Dharmeshbhai Vasudevbhai &
others versus State of Gujrat and others
reported in 2009 Cri. L.J.2969.

(2) Chandrika Singh versus State of
U.P. And others, reported in 2007 (3) JIC
746 (All).

(3) Superintendent of Police, C.B.I.
& Ors. Versus Tapan Kumar Singh,
reported in 2003(2) JIC 126 (SC).

(4) Smt.Santosh Kumari versus
State of U.P., reported in 2007 (2) JIC
351 (All).

3. On the other hand Mr.Rajendra
Kumar
Dwivedi,
learned
Additional
Government Advocate, appearing on behalf
of the State, in support of his argument, has
cited the following decisions:-

(1) Rajendra Singh versus State of
U.P. And others, reported in 2010 (71)
ACC 446.