# Yudhisthir Yadav v. Abhishek Kumar & Anr

- **Citation:** (2025) 7 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-23
- **Case number:** First Appeal From Order No. 531 of 2025
- **Bench:** Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yudhisthir-yadav-v-abhishek-kumar-anr-53610
- **Pages:** 6

## Headnote

Sarthak Varma

Issue for Consideration
Whether ex parte decree passed in plaintiff's
suit for specific performance without framing
issues,
was
valid
in
law,
and
whether
defendant-appellant's application under Order
IX Rule 13 of Civil Procedure Code for setting
aside that decree had been wrongly rejected by
trial court.

Head Notes
Code of Civil Procedure, 1908 - O. IX. R.13
- Plaintiff-respondent instituted suit for
specific performance of contract before
Civil Judge (Senior Division) - Suit was
decreed ex parte on 12.11.2024 without
framing of issues, as defendant-appellant
did not appear - Defendant thereafter filed
application under Order IX Rule 13 of
Code of Civil Procedure on 21.11.2024
seeking to set aside ex parte judgment
and decree - Application rejected by trial
court vide order dated 20.02.2025 on
grounds found to be misconceived by
appellant - Aggrieved thereby, defendant
preferred present First Appeal From Order
praying for setting aside both order dated
20.02.2025 and ex parte decree dated
12.11.2024, and for restoration of suit for
adjudication on merits after due framing
of issues and affording opportunity to
parties to lead evidence.

Held: There is no dispute that plaintiff's suit for
specific performance, filed on 12.07.2024, was
decreed ex parte on 12.11.2024, and that
defendant's application under Order IX Rule 13
C.P.C. dated 21.11.2024 was rejected by trial
court - Suit was decreed without framing issues
and within-time application under Order IX Rule
13 C.P.C. rejected, as such, both impugned
judgment should be set aside rather to remand
matter for fresh consideration of application filed
under Order IX Rule 13 C.P.C. - Trial court shall
frame issues in suit, allow parties to lead
evidence
and
decide
suit
expeditiously,
preferably within six months, in accordance with
law. [Paras 7, 14, 16] (E-13)

Case Law Cited
Balraj Taneja and another v. Sunil Madan and
another, AIR 1999 Supreme Court 3381;
Smt. Kaniz Fatima (deceased) and Another v.
Mohd. Naim Ashraf, AIR 1983 Allahabad
350; Collector, Land Acquisition Anantnag and
Another v. Mst. Kantiji & Others, AIR 1987 SC
1353; Rakesh Kumar Jain v. Zulfkar Ali, 2023
SCC Online All 2821 - referred to

List of Acts
Code of Civil Procedure, 1908.

List of Keywords
Specific performance; Ex parte judgment and
decree; Without framing issues; Restoration
application; Fresh consideration; Records of the
trial
court
be
transmitted;
Rejection
of
application under Order IX Rule 13 C.P.C.;
Expeditious disposal; Opportunity to the parties
to lead evidence; Remand the matter for fresh
consideration

Case Arising From
APPELLATE JURISDICTION: First Appeal From
Order No. - 531 of 2025

From the Judgment and Order dated 20.02.2025
of the Civil Judge (Senior Division), Court No. 2
Bulandshahar, Misc. Case No.217/2024

Appearances for Parties
Advs. for the Appellant:
7 All. Yudhisthir Yadav Vs. Abhishek Kumar & Anr.
7
Dheeraj
Singh
(Bohra),
Rituvendra
Singh
Nagvanshi, Sr. Advocate

Advs. for the Respondent:
Sarthak Verma

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 7 ILRA 6
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2025

BEFORE

THE HON'BLE CHANDRA KUMAR RAI, J.

First Appeal From Order No. 531 of 2025

Yudhisthir Yadav ...Appellant
Versus
Abhishek Kumar & Anr. ...Respondents

Counsel for the Appellant:
Dheeraj Singh (Bohra), Rituvendra Singh
Nagvanshi, Sr. Advocate

Counsel for the Respondents:
Sarthak Varma

Issue for Consideration
Whether ex parte decree passed in plaintiff's
suit for specific performance without framing
issues,
was
valid
in
law,
and
whether
defendant-appellant's application under Order
IX Rule 13 of Civil Procedure Code for setting
aside that decree had been wrongly rejected by
trial court.

Head Notes
Code of Civil Procedure, 1908 - O. IX. R.13
- Plaintiff-respondent instituted suit for
specific performance of contract before
Civil Judge (Senior Division) - Suit was
decreed ex parte on 12.11.2024 without
framing of issues, as defendant-appellant
did not appear - Defendant thereafter filed
application under Order IX Rule 13 of
Code of Civil Procedure on 21.11.2024
seeking to set aside ex parte judgment
and decree - Application rejected by trial
court vide order dated 20.02.2025 on
grounds found to be misconceived by
appellant - Aggrieved thereby, defendant
preferred present First Appeal From Order
praying for setting aside both order dated
20.02.2025 and ex parte decree dated
12.11.2024, and for restoration of suit for
adjudication on merits after due framing
of issues and affording opportunity to
parties to lead evidence.

Held: There is no dispute that plaintiff's suit for
specific performance, filed on 12.07.2024, was
decreed ex parte on 12.11.2024, and that
defendant's application under Order IX Rule 13
C.P.C. dated 21.11.2024 was rejected by trial
court - Suit was decreed without framing issues
and within-time application under Order IX Rule
13 C.P.C. rejected, as such, both impugned
judgment should be set aside rather to remand
matter for fresh consideration of application filed
under Order IX Rule 13 C.P.C. - Trial court shall
frame issues in suit, allow parties to lead
evidence
and
decide
suit
expeditiously,
preferably within six months, in accordance with
law. [Paras 7, 14, 16] (E-13)

Case Law Cited
Balraj Taneja and another v. Sunil Madan and
another, AIR 1999 Supreme Court 3381;
Smt. Kaniz Fatima (deceased) and Another v.
Mohd. Naim Ashraf, AIR 1983 Allahabad
350; Collector, Land Acquisition Anantnag and
Another v. Mst. Kantiji & Others, AIR 1987 SC
1353; Rakesh Kumar Jain v. Zulfkar Ali, 2023
SCC Online All 2821 - referred to

List of Acts
Code of Civil Procedure, 1908.

List of Keywords
Specific performance; Ex parte judgment and
decree; Without framing issues; Restoration
application; Fresh consideration; Records of the
trial
court
be
transmitted;
Rejection
of
application under Order IX Rule 13 C.P.C.;
Expeditious disposal; Opportunity to the parties
to lead evidence; Remand the matter for fresh
consideration

Case Arising From
APPELLATE JURISDICTION: First Appeal From
Order No. - 531 of 2025

From the Judgment and Order dated 20.02.2025
of the Civil Judge (Senior Division), Court No. 2
Bulandshahar, Misc. Case No.217/2024

Appearances for Parties
Advs. for the Appellant:
7 All. Yudhisthir Yadav Vs. Abhishek Kumar & Anr.
7
Dheeraj
Singh
(Bohra),
Rituvendra
Singh
Nagvanshi, Sr. Advocate

Advs. for the Respondent:
Sarthak Verma
(Delivered by Hon'ble Chandra Kumar
Rai, J.)

1. Heard Sri R.C. Singh, learned
Senior Counsel assisted by Sri N.D.
Shukla, learned counsel for the defendantappellant and Sri Anadi Krishna Narayan,
learned counsel, holding the brief of Sri
Sarthak Verma, learned counsel for the
plaintiff-respondents.

2. Brief facts of the case are that
suit for specific performance of contract
filed by plaintiff-respondent, was decreed
ex parte by the trial court vide judgment
and decree dated 12.11.2024. Against the
ex parte judgment and decree dated
12.11.2024, application under Order IX
Rule 13 of Civil Procedure Code, 1908
(hereinafter referred to as the "C.P.C.") has
been filed on behalf of the defendantappellant on 21.11.2024. Against the
application under Order IX Rule 13 of the
C.P.C., an objection was filed on behalf of
the plaintiff. The trial court vide judgment
dated
20.2.2025,
has
rejected
the
application filed on behalf of the defendant
under Order IX Rule 13 of C.P.C. Hence,
the instant First Appeal From Order under
Section 104 read with Order 43 Rule 1(d)
of the Civil Procedure Code for following
relief:-

"The relief sought by means of
present FAFO is that the present appeal
may be allowed, order dated 20.2.2025
passed by the Additional Civil Judge (Sr.
Division), Court No.2, Bulandshahar in
Misc. Case No.217 of 2024 in Original
Suit No.784 of 2024 between Abhishek
Kumar and another (plaintiffs) vs.
Yudhisthir Yadav (defendant) and ex
parte decree dated 22.11.2024 may be set
aside and suit may be decided on merit
after full trial".

3. This Court entertained the matter
on
12.3.2025
and
granted
interim
protection in the matter.

4. Learned Senior Counsel for the
appellant submitted that suit for specific
performance cannot be decreed without
framing issues in the suit. He submitted
that suit was decreed in ex parte manner
vide judgment and decree dated 12.11.2024
within period of four months. He further
submitted that within time application
under Order IX Rule 13 of the C.P.C. has
been rejected on misconceived grounds. He
submitted that ex parte judgment and
decree passed by the trial court as well as
the order, rejecting the application under
Order IX Rule 13 C.P.C., should be set
aside and suit for specific performance
should be decided afresh after framing
issues, giving opportunity to parties to lead
evidence in accordance with law.

5. On the other hand, Sri Anadi
Krishna Narayan, learned counsel, holding
the brief of Sri Sarthak Verma, learned
counsel
for
the
plaintiff-respondents
submitted that the application under Order
IX Rule 13 of the C.P.C. filed by the
defendant-appellant
has
been
rightly
rejected under the impugned order. He
further submitted that the suit was decreed
as ex parte as the defendant was avoiding
the service of notice. He submitted that no
interference is required and the instant First
Appeal From Order filed by the appellant
should be dismissed. He further submitted
that if the Hon'ble Court is of the view that
application filed under Order IX Rule 13
8 INDIAN LAW REPORTS ALLAHABAD SERIES
C.P.C. requires fresh consideration, the
matter may be sent back before trial court
for fresh consideration of application under
Order IX Rule 13 C.P.C.

6. I have considered the arguments
advanced by learned counsel for the parties
and perused the records of the trial court
which was summoned vide order of this
Court dated 12.3.2025.

7. There is no dispute about the fact
that suit for specific performance filed on
12.7.2024 by the plaintiff-respondent has
been decreed ex parte within a period of 4
months vide judgment and decree dated
12.11.2024. There is also no dispute about
the
fact
that
the
application
dated
21.11.2024 under Order IX Rule 13 of the
C.P.C. filed on behalf of the defendantappellant has been rejected.

8. The perusal of the ex parte
judgment and decree dated 12.11.2024
passed by the trial court demonstrates that
the suit for specific performance has been
decreed without framing issues.

9. Hon'ble Supreme Court in the
case reported in AIR 1999 Supreme Court
3381, Balraj Taneja and another versus
Sunil Madan and another has held that suit
for specific performance of contract cannot
be decided without framing issues even the
written statement has not been filed by
defendants. Paragraph Nos. 28, 29, 41 & 43
of the judgment of the Hon'ble Apex Court
rendered in Balraj Taneja (supra) will be
relevant for perusal which are as under:-

"28. Having regard to the
provisions of Order 12 Rule 6, Order 5
Rule 8, specially the proviso thereto, as
also Section 58 of the Evidence Act, this
Court in Razia Begum case [AIR 1958
SC 886 : 1959 SCR 1111] observed as
under:

"In
this
connection,
our
attention was called to the provisions of
Rule 6 of Order 12 of the Code of Civil
Procedure, which lays down that, upon
such admissions as have been made by
the Prince in this case, the Court would
give judgment for the plaintiff. These
provisions have got to be read along with
Rule 5 of Order 8 of the Code with
particular reference to the proviso which
is in these terms:

'Provided that the court may in
its discretion require any fact so
admitted to be proved otherwise than by
such admission.'

The proviso quoted above, is
identical with the proviso to Section 58 of
the Evidence Act, which lays down that
facts admitted need not be proved.
Reading all these provisions together, it
is manifest that the Court is not bound to
grant the declarations prayed for, even
though the facts alleged in the plaint,
may have been admitted."

The Court further observed:

"Hence, if the court, in all the
circumstances of a particular case, takes
the view that it would insist upon the
burden
of
the
issue
being
fully
discharged,
and
if
the
court,
in
pursuance of the terms of Section 42 of
the Specific Relief Act, decides, in a
given case, to insist upon clear proof of
even admitted facts, the court could not
be said to have exceeded its judicial
powers."

29. As pointed out earlier, the
court has not to act blindly upon the
admission of a fact made by the
defendant in his written statement nor
should the court proceed to pass
judgment blindly merely because a
written statement has not been filed by
7 All. Yudhisthir Yadav Vs. Abhishek Kumar & Anr.
9
the defendant traversing the facts set out
by the plaintiff in the plaint filed in the
court. In a case, specially where a
written statement has not been filed by
the defendant, the court should be a little
cautious in proceeding under Order 8
Rule 10 CPC. Before passing the
judgment against the defendant it must
see to it that even if the facts set out in
the plaint are treated to have been
admitted, a judgment could possibly be
passed in favour of the plaintiff without
requiring
him
to
prove
any
fact
mentioned in the plaint. It is a matter of
the court's satisfaction and, therefore,
only on being satisfied that there is no
fact which need be proved on account of
deemed
admission,
the
court
can
conveniently pass a judgment against the
defendant who has not filed the written
statement. But if the plaint itself
indicates
that
there
are
disputed
questions of fact involved in the case
regarding which two different versions
are set out in the plaint itself, it would
not be safe for the court to pass a
judgment without requiring the plaintiff
to prove the facts so as to settle the
factual controversy. Such a case would
be covered by the expression "the court
may, in its discretion, require any such
fact to be proved" used in sub-rule (2) of
Rule 5 of Order 8, or the expression
"may make such order in relation to the
suit as it thinks fit" used in Rule 10 of
Order 8.
 41.
There
is
yet
another
infirmity in the case which relates to the
"judgment" passed by the Single Judge
and upheld by the Division Bench.

43. In an old case, namely,
Nanhe v. Saiyad Tasadduq Husain
[(1912) 15 Oudh Cases 78] it was held
that passing of a mere decree was a
material irregularity within the meaning
of Section 115 of the Code and that even
if the judgment was passed on the basis
of the admission made by the defendant,
other
requirements
which
go
to
constitute
"judgment"
should
be
complied with."

10.
The
ratio
of
the
above
mentioned judgment of Hon'ble Supreme
Court
in
Balraj
Taneja
(supra)
demonstrate that even in the case of
admission court should pass the judgment
which go to constitute "Judgment".

11. This Court in the case reported
in AIR 1983 Allahabad 350, Smt. Kaniz
Fatima (deceased) and Another vs.
Mohd. Naim Ashraf has held that decree
passed in suit without framing relevant
issues, will be illegal. Paragraph Nos. 23 &
24 of the judgment rendered in the case of
Smt. Kaniz Fatima (supra) will be relevant
for perusal which is as under:-

"23. There is no dispute with
the proposition of law laid down in the
aforesaid decision, but the true scope of
the said rule would be that where the
parties have led their entire evidence on
all the pleas raised by them, they cannot
be permitted to urge at the conclusion of
the proceedings or in appeal that they
were taken by surprise by non-framing
of an issue on that particular point on
which they have already exhausted their
evidence. In such a case it cannot be said
that the parties are prejudiced in any
manner whatsoever by non-framing of
an issue. But the said rule cannot be
construed to cover those cases as well
where the evidence was led on issues on
which the parties actually went to trial,
because it is well settled that the evidence
adduced on any particular issue by the
parties cannot be made foundation for
10 INDIAN LAW REPORTS ALLAHABAD SERIES
decision of any other and different plea
on which no issue has been framed,
because in the absence of an issue on the
point they cannot be said to have an
opportunity of adducing evidence in
support of it or in rebuttal of it. It cannot
be assumed that the parties have
exhaustively led evidence on all the pleas
raised in the pleadings. A party is
supposed to lead evidence only on the
issues framed in the suit. The other party
can object and the court can always
refuse to re cord evidence which does not
relate to the issues framed in the suit.
Even if evidence has been led and
brought on record, the court will not be
justified to look into that evidence for
deciding a point not covered by the
issues. Thus, it cannot be said that if the
parties had led evidence in the case it
should be construed to cover all the pleas
raised in the pleadings although no issue
has been framed on that point.

24. The object of framing the
issue is to direct the attention of the
parties to lead evidence on that specific
issue framed and if no evidence is led
(one line obliterated Ed.) drawn against
the concerned party for holding that it
has no evidence to support or to rebut
the plea covered by the issue in question.
But in the absence of proper issues
covering all the pleas raised in pleadings
it cannot be said that the parties have
exhausted all their evidence or all the
pleas raised by them although the same
are not covered by the issues framed. In
this view of the matter, we find that in
the present case since proper issues have
not been framed, which arise out of the
pleadings of the parties as well as in the
statement of the case recorded under O.
10, R. 2 of the Code, it cannot be said
that the defendants have led all their
evidence which they would have led in
support of the pleas which are not
covered by the issues framed in the suit.
The decision, recorded by the court
below, therefore, cannot be sustained on
the said ground urged by the learned
counsel for the plaintiff. The case,
therefore, deserves to be remanded to
the trial court for decision afresh after
framing proper additional issues in the
suit and giving full opportunity to the
parties to lead their evidence which they
may like to produce in support of their
case. Learned court below will carefully
scrutinize pleadings and frame necessary
additional issues."

12. The Apex Court in the case
reported in AIR 1987 SC 1353, Collector,
Land Acquisition Anantnag and Another
vs. Mst. Kantiji & Others has held that in
place of rejecting the matter on technical
grounds, the matter should be decided on
merits.

13. This Court in the case reported
in 2023 SCC Online All 2821, Rakesh
Kumar Jain vs. Zulfkar Ali has set aside
the orders passed, rejecting the application
under Order IX Rule 13 C.P.C. as well as
ex parte decree passed in Original Suit and
directed the trial court to decide the original
suit afresh.

14. In the instant matter the suit
was decreed without framing issues and
within-time application under Order IX
Rule 13 C.P.C. has been rejected, as such,
both the impugned judgement should be set
aside rather to remand the matter for fresh
consideration of application filed under
Order IX Rule 13 C.P.C.

15. Considering the entire facts and
circumstances of the case, the judgment
and order dated 20.2.2025 passed by the
7 All. Hindustan Petroleum Corporation Ltd. & Anr. Vs. Fida Hussain
11
Civil Judge (Senior Division),
Court No.2, Bulandshahar in Misc. Case
No.217/2024 is set aside and restoration
application dated 21.11.2019 (4C2), under
Order 9 Rule 13 C.P.C. is allowed.
Consequently the ex parte judgment and
decree dated 22.11.2024, passed in Original
Suit No.784/2024 is also set aside.

16. The instant First Appeal
From Order is allowed. Original Suit
No.784/2024 is restored to its original
number. The trial court shall frame issues
in the suit and afford opportunity to the
parties to lead evidence in accordance with
law. The trial court shall decide the suit
expeditiously, preferably within a period of
six months from the date of production of
the certified copy of the order, in
accordance with law.

17. Records of the trial court be
transmitted
to
the
court
concerned
forthwith.
----------
(2025) 7 ILRA 11
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.07.2025

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Civil Misc. Review Application No. 174 of 2025

Hindustan Petroleum Corporation Ltd. &
Anr. ...Applicants
Versus
Fida Hussain ...Opposite Party

Counsel for the Applicants:
Komal Mehrotra

Counsel for the Opposite Party:
Yash Padia
Issue for Consideration
I. Whether The Court overlooked the fact that
brochure for Dealer Selection provides for non
rectifiable clause since 2023 advertisement

II. Whether The Court overlooked the fact that
in contractual matters, the parties are bound by
the
terms
and
conditions
of
the
advertisement/brochure and the Court cannot
direct any party to act contrary to the terms and
conditions of the brochure.

III. Whether In M/s Indian Oil Corporation
Limited & others v. Raj Kumar Jha & Others
reported in (2012) 2 PLJR 783, the Patna High
Court has upheld the rejection of the application
by corporation and directed strict adherence to
the terms and conditions mentioned in the
advertisement.

Head Notes
The Constitution of India, 1950-Article
226- The Code of Civil Procedure, 1908-
Section 151 & Order 47 Rule 1- Court had
gone into all the materials that were
present before the Court - Court finding
the defect in the PAN to be curable at the
first instance had set aside the order
rejecting the application for award of
retail outlet dealership of the petitioner -
Review application appears to be an
appeal in disguise - Review application
dismissed.

Held- The grounds in the present review
application neither fall within the ambit of
'discovery of new and important matter or
evidence' nor within 'mistake or error apparent
on the face of record'. (Para 3, 5 & 6) (E-15)

Case Law Cited
State of West Bengal v. Confederation of State
Government Employees; 2019 SCC Online Cal
9181; M/s Indian Oil Corporation Limited &
others v. Raj Kumar Jha & Others reported in
(2012) 2 PLJR 783

List of Acts
The Constitution of India, 1950- The Code
of Civil Procedure, 1908

List of Keywords