Heirs Can't Seek Setting Aside Of Ex-Parte Decree Without Explaining Original Defendant's Non-Appearance: Gujarat High Court

The Gujarat High Court has observed that heirs of a party cannot seek setting aside of an ex-parte decree without explaining or showing "sufficient cause" for non-appearance of their mother, despite being represented by an advocate in the court.

Justice Devan M. Desai observed that even if a liberal view is to be adopted while considering restoration applications, “the defendant, at least must show a plausible sufficient cause which prevented the defendant to appear and contest the suit.” The Court said that it cannot presume such cause merely because the legal heirs later claim ignorance of the decree.

"Even if the Court wants to take a lenient view in setting aside a decree passed ex parte against defendant, the defendant, at least must show a plausible sufficient cause which prevented the defendant to appear and contest the suit. The Court cannot presume any cause being a sufficient cause and set aside a decree passed ex parte merely on the statement that after mother's death, upon inquiry from papers, applicants received the knowledge of decree being passed against mother – original defendant".

The Court was hearing an Appeal from Order filed by Krishnan Satishbhai Patel and another challenging the Civil Court's order which had rejected their application to restore Civil Suit.

The original suit was filed by Pankaj Vasantlal Jain seeking recovery of possession of some property and an ex parte judgement and decree was passed in his favour. The defendant mother, who was contesting his claims in the original suit, expired soon after the judgement was passed and her heirs moved an application to under Order 9 Rule 13 CPC to set aside the ex parte decree, which was rejected by the trial court.

Appearing for the appellants, advocate Y. N. Ravani contended that the trial court had passed the ex parte decree without granting a proper opportunity of hearing to the mother against whom the suit was instituted. Further, Ravani submitted that the transaction was not an outright sale but arose from a loan arrangement, under which an agreement to sell and registered sale deed were executed as security. He contended that full consideration was never paid to the late mother and that Pankaj Vasantlal Jain had misused blank cheques issued by the mother, subsequently initiating proceedings under Section 138 of the NI Act.

He further argued that the property remained the ownership property of the appellants and their mother, and that they came to know of the ex parte decree only after her death upon discovering relevant papers. Relying on M.K. Prasad v. P. Arumugam and K.D. Patel v. State of Gujarat, he urged the Court to adopt a liberal approach while considering the Order 9 Rule 13 application.

However, the High Court noted that it was not the case of the appellants that summons had not been served upon the defendant-mother. Nor was it pleaded that any advocate engaged by her had remained absent resulting in the ex parte decree. The Court recorded that there was “not even a word” in the application explaining why the mother, despite service of summons, failed to appear and contest the suit.

The Court further observed that Order 9 Rule 13 mandates that the defendant must satisfy the Court either that summons was not duly served or that he was prevented by “sufficient cause” from appearing when the suit was called on for hearing. In the present case, no such cause was pleaded or established. Mere assertion that the legal heirs came to know about the decree after the mother's death could not amount to sufficient cause for her non-appearance.

Distinguishing the judgments relied upon by the appellants, the Court noted that the Supreme Court had condoned delay in the peculiar facts where reasons were specifically pleaded and justified.

Agreeing with the findings of the trial court, the court dismissed the appeal.

Case title: Krishnan Satishbhai Patel & Anr. v. Pankaj Vasantlal Jain

Case no.: R/APPEAL FROM ORDER NO. 240 of 2025 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2025

Appearance: Y.N. Ravani for the Appellants

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