Holding

The Supreme Court set aside the High Court order, upheld the appellate court’s dismissal of the writ petition, and held that the High Court was not justified in condoning the delay or setting aside the ex‑parte decree.

Summary

The appellant filed a civil suit in 1987 seeking cancellation of a sale deed, but the respondents repeatedly obtained adjournments and were eventually set ex parte, leading to a decree in 1991. The respondents later filed applications under Order IX Rule 13 and the Limitation Act, which were dismissed, and their subsequent recall applications were also rejected. They then filed a writ petition under Article 227, which the High Court allowed after condoning a seven‑year delay in seeking recall of the dismissal of the writ petition, setting aside the ex‑parte decree. The Supreme Court held that the seven‑year delay was unreasonable, the respondents had not shown sufficient cause for their absence, and the High Court had erred in both condoning the delay and in treating the ex‑parte decree as appealable. Consequently, the Supreme Court set aside the High Court order, upheld the lower appellate court’s decision, and dismissed the respondents’ writ petition, allowing the civil appeal.

Issues considered

Whether the High Court was justified in condoning a seven‑year delay for recall of the dismissal of the writ petition under Article 227.
Whether the ex‑parte decree could be set aside on the basis of the respondents’ alleged illness and lack of participation.
Whether the respondents, set ex‑parte, had sufficient cause for staying away from the suit proceedings.
Whether the High Court correctly exercised its supervisory jurisdiction under Article 227 in this context.

Legislation cited

Code of Civil Procedure, 1908s. Order IX Rule 13, s. Order VI Rule 2, s. Section 2(2)
Constitution of Indias. Art.227
Limitation Act, 1963s. Section 5
Specific Relief Act, 1963s. Section 34

Headnote

Issue for Consideration Matter pertains to sustainability of the order passed by the High Court allowing writ petition u/Art.227 of the Constitution and allowing multiple interlocutory applications-application for condonation of delay in filing recall application, application for being allowed. Headnotes† Constitution of India – Art.227 – Code of Civil Procedure, 1908 – Ord.9 r.13 – Appellant filed civil suit for cancellation of a sale deed – Respondents filed written statement, and thereafter went on taking adjournment one after the

Subjects

Interlocutory applicationsCondonation of delayApplication for recall/restorationApplication for amendmentAdjournmentSuit decreed ex parteSufficient reason for not condoning delaySufficient cause for staying away from proceedingsVigilance and diligenceNo sufficient cause for absencePlaintWritten statementDefendant set ex parteLimited right of defendant set ex partePleadings

Judgment

[2025] 4 S.C.R. 1490 : 2025 INSC 542

Kanchhu
v.
Prakash Chand & Ors.
(Civil Appeal No. 5319 of 2025)
22 April 2025
[Dipankar Datta* and Manmohan, JJ.]

Issue for Consideration
Matter pertains to sustainability of the order passed by the High
Court allowing writ petition u/Art.227 of the Constitution and allowing
multiple interlocutory applications-application for condonation of
delay in filing recall application, application for recall/restoration,
application for amendment prior to writ petition being allowed.

Headnotes†
Constitution of India – Art.227 – Code of Civil Procedure, 1908 –
Ord.9 r.13 – Appellant filed civil suit for cancellation of a sale
deed – Respondents filed written statement, and thereafter went
on taking adjournment one after the other – Having abstained
from participating in the proceedings, suit decreed ex parte –
Application u/Ord.9 r.13 with application u/s.5 of Limitation
Act by the respondents – Application for condonation of
delay rejected – Thereagainst revision filed – Condonation
of delay granted, and the trial court directed to dispose of
the application u/Ord.9 r.13 on its own merits, and thereafter
the said application was dismissed – Miscellaneous appeal
thereagainst, dismissed by appellate court – Respondents
then filed writ petition, which was dismissed as infructuous
in absence of the respondents, however, two months time
granted to seek recall of order – Six and a half years later,
the respondents sought recall of order with an application
for condonation of delay – High Court allowed condonation
of delay, recalled the order, allowed prayer for amendment
and allowed the writ petition and appellate order confirming
dismissal of the application u/Ord.9 r.13 and ex-parte decree
were set aside – Sustainability:

* Author
[2025] 4 S.C.R. 1491

Kanchhu v. Prakash Chand & Ors.

Held: Not sustainable – Period of seven years is sufficiently long
and in light of the fact that decree of the trial court had been
executed and impugned sale deed cancelled, respondents should
have woken up from their slumber earlier – This delay itself would
constitute sufficient reason for not condoning the delay in filing the
application for recall of the order dismissing the writ petition as
infructuous – Judge did not at all discuss what was the case set
up by the respondents while seeking recall of the ex parte decree
and what the defence of the appellant was in his written objection –
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 – In exercise of jurisdiction u/Art.227,
the judge was required to examine whether the respondents had
shown sufficient cause for staying away from the proceedings of
the suit after filing their written statement – Judge barely considered
the application u/Ord.IX r.13 filed by the respondents and, without
even looking into the cause shown allowed the prayer for setting
aside of the ex parte decree perceiving the judgment preceding it
to be flawed on merits – Respondents never explained what was
the real cause for the suit to proceed ex parte – Cause shown
falls much short of an explanation and is nothing but a lame
excuse – Trial court and appellate court assigned cogent reasons
for not accepting the cause shown by the respondents – Not only
vigilance and diligence on the part of the respondents are woefully
lacking but such lack is glaringly apparent – Furthermore, since
respondents did not cross-examine the appellant, whatever he
deposed was believed and accepted – It cannot be understood
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 while granting relief – Observations
of the judge of the High Court cannot be accepted – It is flawed
approach which has resurrected the dispute between the parties
which was finally decided three decades back – High Court order
being based on irrelevant, illogical and immaterial observations is
clearly indefensible – Impugned order set aside. [Paras 8, 9, 11,
12, 14-17, 20, 21]

Code of Civil Procedure, 1908 – Civil suit – Rights of a
defendant in a civil suit where defendant has been set ex-parte:
Held: Pleadings, either in a plaint or a written statement, constitute
the plinth on which the respective claims and defence of the
1492 [2025] 4 S.C.R.

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parties to a civil suit rest – Once the pleadings are complete
but the defendant is set ex parte, and such order has attained
finality, the defendant’s rights suffer a curtailment – He cannot
produce evidence in defence and hence statements, which are
in the nature of factual assertions, cannot be proved by leading
evidence – Limited right that the defendant, set ex parte, would
have is confined to cross-examining the plaintiff’s witnesses –
Effort has to be directed towards demonstrating that they are not
speaking the truth and, thereby, demolish the case of the plaintiff –
In such a case the defendant has to convince the court that the
case put up by the plaintiff is so false that the court ought not to
accept it. [Para 19]

List of Acts
Constitution of India; Code of Civil Procedure, 1908; Specific Relief
Act, 1963; Limitation Act, 1963.

List of Keywords
Interlocutory applications; Condonation of delay; Application for
recall/restoration; Application for amendment; Adjournment; Suit
decreed ex parte; Sufficient reason for not condoning delay;
Sufficient cause for staying away from proceedings; Vigilance
and diligence; No sufficient cause for absence; Plaint; Written
statement; Defendant set ex parte; Limited right of defendant set
ex parte; Pleadings.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5319
of 2025
From the Judgment and Order dated 01.05.2024 of the High Court
of Judicature at Allahabad in WRITC No. 378 of 2003

Appearances for Parties
Advs. for the Appellant:
P.S. Datta, Sr. Adv., Sanjay Kumar Chatterjee, Sunil Kumar Pandey,
Paramhans Sahani, Hemant Kumar Niranjan, M/S. Brajesh Pandey
& Associates.
Advs. for the Respondents:
Sukumar Pattjoshi, Sr. Adv., Kiran Kumar Patra, Preetish Sahu.
[2025] 4 S.C.R. 1493

Kanchhu v. Prakash Chand & Ors.

Judgment / Order of the Supreme Court

Judgment

Dipankar Datta, J.

The Appeal
1. This civil appeal is directed against a judgment and order dated 1st
May, 20241 of a learned Judge of the High Court of Judicature at
Allahabad allowing a writ petition2 under Article 227 of the Constitution
of India filed by the respondents. The impugned order also allowed
multiple interlocutory applications, viz. application for condonation of
delay in filing a recall application; application for recall/restoration,
an application for amendment prior to the writ petition being allowed.

The Facts
2. Facts giving rise to this appeal, in a nutshell, are:
I. Appellant, as plaintiff, instituted a civil suit3 on 22nd May, 1987
for cancellation of a sale deed in the court of the Munsif, Khurja,
District Bulandshahr, Uttar Pradesh.4 The prayer in the plaint
was for cancellation of a registered sale deed,5 whereby the
appellant purportedly transferred a land, measuring a little in
excess of 6 bigha 5 biswa, in favour of the defendants. The
appellant set up a case of fraud in support of his claim for relief.
II. Respondents, being the defendants, filed their written statement
on 18th September, 1987. They claimed that the appellant was
their brother. After relations between the brothers soured, the
appellant instituted the suit with ill-motive. Issues were framed
on 18th January, 1988. While issue No.4 was a preliminary
issue, as to jurisdiction of the court to decide the claim of
the appellant, issue no.3 was whether the suit was barred by

1 impugned order
2 Writ C No.378 of 2003
3 Suit No.105/1987
4 trial court
5 deed was registered in the Office of Sub-Registrar, Khurja, bearing No. 5179 dated 05th September,
1984
1494 [2025] 4 S.C.R.

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Section 34 of the Specific Relief Act, 1963. Both these issues
along with other issues were decided against the respondents.
III. After filing the written statement, the respondents went on
taking adjournment one after the other. On 10 (ten) occasions,
the trial court adjourned proceedings. Having abstained from
participating in the proceedings, an order dated 24th April, 1991
was passed setting the respondents ex-parte. Evidence of the
appellant was recorded on 2nd July, 1991. Since the respondents
did not appear, the appellant faced no cross-examination. The
suit was posted for arguments and arguments were heard on
6th August, 1991. Finally, the suit was decreed ex parte by the
trial court on 17th August 1991.
IV. An application under Order IX Rule 13 of the Code of Civil
Procedure, 19086 together with an application under Section
5 of the Limitation Act, 19637 was filed by the respondents.8
V. By an order dated 3rd November, 1997, the application for
condonation of delay was rejected, thereby resulting in dismissal
of the Misc. Case. The order of dismissal was carried in
revision9 whereupon such revision was allowed. The prayer
for condonation of delay was granted and the trial court was
directed, by an order dated 19th April, 1999, to dispose of the
application under Order IX Rule 13, CPC on its own merits.
VI. The trial court thereafter proceeded to hear the Order IX Rule 13
application and dismissed it by an order dated 23rd July, 2002.
VII. The order dated 23rd July, 2002 was then carried in a
miscellaneous appeal,10 which was dismissed by the District
Judge, Gautam Budh Nagar on 8th October, 2002. It was held by
the appellate court that although the respondent no.1 claimed to
have taken ill on 15th August, 1991 and such illness continued
till 30th November, 1991, during this period only the judgment
and decree dated 17th August, 1991 were delivered and passed,

6 CPC
7 1963 Act
8 giving rise to Misc. Case No. 74 of 1991
9 Civil Revision No. 174 of 1997
10 M.C.A. No.52/2002
[2025] 4 S.C.R. 1495

Kanchhu v. Prakash Chand & Ors.

respectively. Therefore, on its very face, sufficient cause for
non-appearance not having been shown by the respondents
in the application under Order IX Rule 13, CPC, they did not
deserve any order in their favour.
VIII. The appellate order dated 8th October, 2002 was challenged in
the writ petition by the respondents, out of which this appeal
has arisen.
IX. By an order dated 1st December, 2011, the writ petition was
dismissed as infructuous. However, the learned Judge granted
two months’ time to seek recall of such order in case any
question survived for decision.
X. The order dated 1st December, 2011 was passed in the absence
of the respondents, who were the petitioners in the writ petition.
XI. More than six and a half years later, the respondents sought
recall of the order dated 1st February, 2011 together with an
application for condonation of delay. The explanation proffered
for the delay was that the respondents had not been informed by
their counsel that the writ petition stood dismissed as infructuous
vide order dated 1st December, 2011.
XII. By the impugned order, the High Court allowed the prayer for
condonation of delay, recalled the order dated 1st December,
2011, allowed the prayer for amendment and then proceeded to
allow the writ petition. The appellate order confirming dismissal
of the application under Order IX Rule 13, CPC was set aside
as well as the ex-parte decree dated 17th August 1991.

Contentions On Behalf Of The Parties
3. Mr. Partha Sakha Datta, learned senior counsel for the appellants
was overly critical of the impugned judgment and order. According
to him, absolutely incorrect tests were applied by the learned Judge
while allowing the writ petition and the impugned order is, thus,
indefensible.
4. Mr. Sukumar Pattjoshi, learned senior counsel for the respondents,
on the other hand appealed to the conscience of the Court not
to interfere with the discretion exercised by the learned Judge in
favour of the respondents. He contended that the ultimate effect of
the impugned order is to ensure a fair trial which the respondents
1496 [2025] 4 S.C.R.

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missed on the earlier occasion due to reasons absolutely beyond
their control. Accordingly, he prayed that the appeal be dismissed.

Issue
5. The solitary issue emerging for adjudication by us is whether the
High Court was justified on facts and in law to allow the writ petition
of the respondents in the manner it did?

Analysis and Reasons
6. We have heard Mr. Datta and Mr. Pattjoshi and perused the materials
on record.
7. The writ petition of the respondents stood dismissed as infructuous
on 1st December, 2011 along with multiple other writ petitions in the
process of weeding out matters, which the High Court felt had become
infructuous by efflux of time. The learned Judge of the High Court,
however, was conscious that there could be writ petitions which
involved question(s) surviving for a decision but the petitioner(s) in
such petitions had not been represented on that day. Accordingly,
the learned Judge observed that recall could be sought within a
period of two months, meaning thereby that if an application for
recall were filed, recall of the order of dismissal and restoration of
the writ petition would be a mere formality.
8. The respondents applied for recall as late as on 5th June, 2018.
By then 7 (seven) years had passed. We have gathered from the
papers forming part of the paper book that the respondent no.1 is
a lawyer. Even if he were not a lawyer, nothing much would turn on
it. The period of 7 (seven) years is sufficiently long and considered
in the light of the fact that the decree of the trial court had been
executed and the impugned sale deed cancelled, the respondents
should have woken up from their slumber earlier. This delay itself
would constitute sufficient reason for not condoning the delay in filing
the application for recall of the order dismissing the writ petition as
infructuous. However, we propose to take a lenient view having regard
to the explanation proffered by the respondents that their lawyer
did not inform them that the writ petition had been dismissed. For
the moment, we shall assume that there was sufficient ground for
the respondents not to apply for recall earlier and that the learned
Judge was justified to (i) condone the delay in presentation of the
[2025] 4 S.C.R. 1497

Kanchhu v. Prakash Chand & Ors.

recall application; (ii) recall the order dated 1st December, 2011 and
(iii) restore the writ petition to file. However, by no means should we
be understood to lay down any law that whenever a litigant places
the blame on the lawyer by pleading that it was the lawyer’s fault
or mistake that resulted in his (litigant’s) misfortune, the same has
invariably to be accepted.
9. Moving forward, we have found the grounds assigned by the
learned Judge for allowing the writ petition to be quite strange. The
learned Judge did not at all discuss what was the case set up by the
respondents while seeking recall of the ex parte decree and what the
defence of the appellant was in his written objection. The reasons
given in the appellate order upholding dismissal of the application
under Order IX Rule 13, CPC seem to have gone unnoticed. Despite
issues having been framed as late as on 18th January, 1988, the
ignorance of the learned Judge becomes apparent when in the
operative part of the impugned order directions are given for framing
of issues. Over and above all these, 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. This is evident from a bare reading of the impugned
order. Relevant observations therefrom read as follows:
… I have gone through the ex parte judgment and decree passed
by the trial court on 17th August, 1991 and find that the trial court
has simply proceeded to record statement of plaintiff and had
decreed the suit. He has referred to the written statement filed
by the defendant but has not considered it only on the ground
that court had proceeded ex parte in the matter.
In my considered view, while the court was proceeding ex parte,
the court ought to have considered the written statement and
defence taken therein.
It is well settled law that whenever the suit filed and finally
judgment is passed, it is an adjudication of lis between the
parties. There has to be independent application of mind as to
the issues emerging out from the plaint allegations and written
statement if filed. There has to be a proper adjudication and only
then it can be said that to be formal declaration of judgment to
fall within the meaning of Section 2(2) of C.P.C.
1498 [2025] 4 S.C.R.

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In view of the above, this petition holds merit and is accordingly
allowed.
…
Consequent upon the aforesaid observations, the learned Judge did
what we have recorded above together with directions to expedite
a decision on the suit.
10. 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.
11. In exercise of jurisdiction under Article 227 of the Constitution, the
learned Judge was required to examine whether the respondents
had shown sufficient cause for staying away from the proceedings
of the suit after filing their written statement; in other words, whether
despite showing sufficient cause, not only the trial court but also the
appellate court fell in error in not accepting the explanation proffered
and in setting aside the ex parte decree.
12. As referred to above, the learned Judge barely considered the
application under Order IX Rule 13, CPC filed by the respondents
and, thus, without even looking into the cause shown allowed the
prayer for setting aside of the ex parte decree perceiving the judgment
preceding it to be flawed on merits.
13. We have perused the affidavit accompanying the applications
under Order IX Rule 13, CPC and Section 5 of the 1963 Act in the
Misc. Case. It was averred therein that the respondent no. 1 was
looking after the case on his own behalf and on behalf of the other
respondents; that, he fell sick on 15th August, 1991; and that, he was
so sick that he was unable to walk. A medical certificate dated 30th
November, 1991 issued by a local doctor was sought to be relied
on certifying that the respondent no. 1 was under his treatment from
15th August 1991 to 30th November, 1991. A written objection to the
application was filed by the appellants wherein it was averred that
the respondent no.1 was a resident of the same village where the
appellant no.1 resided and that he has seen the respondent no. 1
moving around in a healthy state and that the medical certificate was
bogus. It was further pleaded that the respondents were deliberately
not participating in the proceedings and filing repeated applications
for adjournment for which they were set ex parte on 24th April, 1991.
[2025] 4 S.C.R. 1499

Kanchhu v. Prakash Chand & Ors.

On 2nd July, 1991, evidence was recorded and 6th August, 1991 was
fixed for arguments. On 24th April, 2nd July, 1991 and 6th August, 1991,
the respondent no.1 was not ill as per his own case. Why did the
respondents stay away from the proceedings had not been explained.
Ultimately, the suit was decided ex parte on 17th August, 1991.
14. Significantly, even if the plea of the respondent no. 1 that he fell sick
from 15th August, 1991 is accepted, we find that the respondents
went on seeking adjournments. The appellate court in its order dated
8th October, 2002 noted that on 10 (ten) previous occasions, prayers
for adjournment made by the respondents were allowed. It is also
found that the respondents stayed away from the trial court months
before the claimed illness of the respondent no.1. No wonder, due to
their absence, the respondents were set ex parte by the trial court on
24th April, 1991. The respondents never explained what was the real
cause for the suit to proceed ex parte. The cause shown falls much
short of an explanation and we are inclined to view it as nothing but a
lame excuse. In view of the specific objection taken by the appellants,
one would have thought that the respondents would step on to the
witness box and prove the case set up in the applications. Neither
did the respondent no.1 and the co-respondents nor the so-called
attending doctor of the respondent no.1 stepped into the witness box
to prove that the respondent no.1 was ill; the appellant no.1 was
not, therefore, proved wrong. Assuming that the respondent no. 1
was so sick which prevented him from attending the court, there is
no explanation either as to why the other respondents after filing of
the written statement had not shown any interest to contest the suit.
15. While hearing the application under Order IX Rule 13, CPC as well
as the miscellaneous appeal, the trial court and the appellate court,
respectively assigned cogent reasons for not accepting the cause
shown by the respondents. Since the learned Judge did not refer
to the orders dated 23rd July, 2002 and 8th October, 2002 passed by
the said courts at all, we do not have the benefit of ascertaining how
the trial court and the appellate court went wrong in not allowing the
application for setting aside the ex parte decree.
16. It is truism that vigilance and diligence go hand-in-hand, making them
two sides of the same coin, when it comes to pursuing/defending
a legal action. In this case, not only vigilance and diligence on the
part of the respondents are woefully lacking but such lack is glaringly
apparent.
1500 [2025] 4 S.C.R.

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17. The respondents faltered to defend the suit even prior to 24th April
1991 when the order setting them ex parte was passed and we
find it incomprehensible as to how the learned Judge of the High
Court could be convinced, so much so that without any reference
to the case and counter-case set up by the parties and the orders
passed by the trial court and the appellate court, the application
under Order IX Rule 13, CPC could succeed. It is only on this short
ground (that the respondents did not make out sufficient cause for
their absence on continuous dates from 24th April 1991 till the suit
was decreed on 17th August 1991) that the impugned order cannot
be sustained in law.
18. Although we have expressed our mind about the inevitable outcome of
this appeal, we have observed with a great sense of disappointment
the observations made by the learned Judge extracted (supra)
demonstrating a clear misconception of the legal position as to the
rights of a defendant in a civil suit where such defendant has been
set ex parte. Before parting, therefore, there is a need to say a few
words for the guidance of the courts.
19. Pleadings, either in a plaint or a written statement, constitute the plinth
on which the respective claims and defence of the parties to a civil
suit rest. What a pleading ought to contain is provided in Order VI
Rule 2, CPC. Only material facts, on which the party pleading relies
for his claim or defence to succeed, have to be stated without the
evidence by which the pleading is to be proved. Once the pleadings
are complete but the defendant is set ex parte, and such order has
attained finality, the defendant’s rights suffer a curtailment. He cannot
produce evidence in defence and hence statements, which are in the
nature of factual assertions, cannot be proved by leading evidence.
Generally speaking, the limited right that the defendant, set ex parte,
would have is confined to cross-examining the plaintiff’s witnesses.
The effort has to be directed towards demonstrating that they are not
speaking the truth and, thereby, demolish the case of the plaintiff.
Essentially, therefore, in such a case the defendant has to convince
the court that the case put up by the plaintiff is so false that the court
ought not to accept it. However, if the defendant raises an issue on
law which is traceable in the written statement, for instance, the suit
is barred by limitation or Section 9, CPC is attracted, or if the relief
claimed in the suit cannot be granted for reasons disclosed, the
requirement of the defendant proving such defence as raised in the
[2025] 4 S.C.R. 1501

Kanchhu v. Prakash Chand & Ors.

written statement by leading evidence may not arise and the court
may frame an issue of law and decide the same.
20. We have noticed that the preliminary issue of jurisdiction of the trial
court to receive, entertain and try the suit was decided against the
respondents vide an order dated 18th January, 1988. The little detail
that is decipherable from the written statement of the respondents is
that in view of a local enactment with regard to the Zamindari system,
the respondents claimed that the trial court did not have jurisdiction.
Nevertheless, it does appear that other issues were framed and since
the respondents did not cross-examine the appellant, whatever he
deposed was believed and accepted. 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 while granting relief. The observations
of the learned Judge cannot be countenanced with reference to any
provision of law or binding precedent.
21. We have no doubt that it is the flawed approach of the learned Judge
which has resurrected the dispute between the brothers, which was
finally decided over 3 (three) decades back. As has rightly been
contended by Mr. Datta, the impugned order of the High Court being
based on irrelevant, illogical and immaterial observations is clearly
indefensible.

Conclusion
22. 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.
23. The civil appeal, accordingly, stands allowed.
24. The pending application(s), if any, stands closed.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Nidhi Jain