Kiran Raj

The Supreme Court of India, Division Bench comprising Justice Dipankar Datta and Justice Manmohan, set aside a High Court judgment that had resurrected a decades-old ex-parte decree. The Bench held that the High Court exceeded its jurisdiction under Article 227 of the Constitution, stating that the manner of intervention lacked legal justification and factual grounding.

The apex court directed that the High Court's order dated 1st May 2024, which set aside the ex-parte decree and subsequent appellate affirmations, be quashed. The Supreme Court concluded that the original ex-parte decree dated 17th August 1991 remains valid and enforceable.

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The dispute originated when the appellant, Kanchhu, filed a civil suit on 22nd May 1987 in the Court of the Munsif, Khurja, District Bulandshahr, Uttar Pradesh. The suit sought cancellation of a registered sale deed dated 5th September 1984, alleging that the document transferring over 6 bigha 5 biswa of land to the respondents, including his brother, was fraudulently executed.

The respondents, namely Prakash Chand and others, contested the suit, filing their written statement on 18th September 1987. They claimed familial relations with the appellant and labelled the suit an outcome of soured relations. On 18th January 1988, the trial court framed issues, including preliminary issues concerning jurisdiction and the bar under Section 34 of the Specific Relief Act, 1963.

Despite participating initially, the respondents subsequently began seeking adjournments, with ten such instances recorded. Due to non-participation, the trial court passed an order on 24th April 1991 setting the respondents ex-parte. The appellant’s evidence was recorded on 2nd July 1991 without any cross-examination. Arguments followed on 6th August 1991, and an ex-parte decree was passed on 17th August 1991.

An application for setting aside the ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure, 1908, along with a Section 5 Limitation Act application, was filed. The trial court rejected the delay condonation on 3rd November 1997. The rejection was challenged in Civil Revision No. 174 of 1997 and reversed on 19th April 1999, with the trial court ordered to decide the application on merits. However, the trial court dismissed the application on 23rd July 2002.

A miscellaneous appeal (M.C.A. No. 52/2002) was filed and dismissed by the District Judge, Gautam Budh Nagar, on 8th October 2002. The appellate court found no sufficient cause was shown for absence and dismissed the medical certificate as unconvincing. The High Court writ petition filed against this order was dismissed as infructuous on 1st December 2011.

On 5th June 2018, over six years later, the respondents sought recall, citing ignorance of the earlier dismissal due to lack of communication from counsel. The High Court, through its order dated 1st May 2024, condoned the delay, allowed the amendment of the writ petition, and set aside all prior orders, including the ex-parte decree.

The Supreme Court took a critical view of the High Court’s approach, stating: "We are not so much dismayed by the outcome of the writ petition but rather the manner in which the learned Judge proceeded and also by the reasons assigned for granting the prayers of the respondents."

It further stated: "The learned Judge appears to have set aside the ex parte decree passed by the trial judge as if he were sitting in appeal and exercising appellate jurisdiction over such decree."

Discussing the delay in recall application, the Court remarked: "The period of 7 (seven) years is sufficiently long... this delay itself would constitute sufficient reason for not condoning the delay." However, it also recorded that it chose leniency based on the explanation of non-communication by counsel.

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The Bench noted that even accepting the illness plea from 15th August to 30th November 1991, there was no explanation for continued non-appearance earlier. It remarked: "The respondents faltered to defend the suit even prior to 24th April 1991... the cause shown falls much short of an explanation and we are inclined to view it as nothing but a lame excuse."

On legal propriety, it stated: "We are left to wonder how the judgment of the trial court could have been faulted and the decree set aside on the ground that the defence raised in the written statement was not considered."

The Supreme Court set aside the impugned High Court order, restoring finality to the earlier decree:

"The impugned order dated 1st May, 2024 of the High Court is set aside and the order of the appellate court dated 8th October, 2002, impugned in the writ petition, is upheld with the result that the writ petition of the respondents filed in the High Court shall stand dismissed."

"The civil appeal, accordingly, stands allowed."

Advocates Representing the Parties

For the Appellants: Mr. Brajesh Pandey, Mr. Paramhans Sahani, Mr. Sunil Kumar Pandey, Mr. S.K. Tripathi, Mr. Hemant Kumar Niranjan, Advocates; M/s. Brajesh Pandey & Associates, Advocate-on-Record.

For the Respondents: Mr. Kiran Kumar Patra, Advocate-on-Record; Mr. Chandan Maity, Mr. Preetish Sahu, Advocates.

Case Title: Kanchhu vs. Prakash Chand & Ors.

Neutral Citation: 2025 INSC 542

Case Number: Civil Appeal No. 5319 of 2025 (arising out of SLP(C) No. 20978 of 2024)

Bench: Justice Dipankar Datta, Justice Manmohan

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