Anuj Kumar and 2 Others v. Mohd. Ayub @ Sainik and Another

Allahabad HC15 Dec 2025A227/7184/2025

Case brief

AI extract

What is this about?

Petitioners challenged a trial court order allowing the opposite party's application under Order IX Rule 13 CPC to set aside an ex-parte decree, arguing the counsel-collusion allegation was unsubstantiated. The High Court issued notice, permitted counter and rejoinder affidavits, and stayed operation of the impugned order till next listing.

What the court decided

AI extract

Anuj Kumar and 2 Others vs Mohd. Ayub @… — Civil Procedure and Limitation | Allahabad HC (2025)

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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MATTERS UNDER ARTICLE 227 No. - 7184 of 2025

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Anuj Kumar And 2 Others

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.....Petitioner(s)

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Versus

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Mohd. Ayub @ Sainik And Another

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.....Respondent(s)

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Counsel for Petitioner(s) : Virendra Mishra, Ashwini Kumar Tripathi, Shradha Mishra Counsel for Respondent(s) :

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Court No. - 17

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HON'BLE SUBHASH VIDYARTHI, J.

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Heard Sri Virendra Mishra, the learned counsel for the petitioners and perused the records.

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By means of the instant petition filed under Article 227 of the Constitution of India the petitioners have challenged the validity of an order dated 19.02.2015, passed by learned Civil Judge, Senior Division Pratapgarh in Misc. Case No.59 of 2013, arising out of Regular Suit No.352 of 2012 whereby an application filed by the defendants-opposite parties under Order IX, Rule 13 CPC for setting aside ex-parte judgment and decree dated 10.01.2013 was allowed and the judgment and decree were set aside.

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The petitioners have challenged the aforesaid order by filing Civil Revision No.28 of 2015 which has been dismissed by means of a judgment and order dated 08.04.2025 and the petitioners have challenged the validity of that order also.

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The petitioner no.1 had filed Regular Suit No.352 of 2012 in the Court of learned Civil Judge, Senior Division, Pratapgarh against the defendants-opposite parties for cancellation of sale deed and perpetual injunction on 30.05.2012.

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The defendant no.2 in the suit Smt. Sureela Devi is mother of the petitioner no.1 and she has filed a written statement supporting

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A227 No. 7184 of 2025

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the petitioners' claim. The defendant no.1-Mohd. Ayub filed an application before the learned trial court on 05.07.2012 through Sri Harikesh Singh, Advocate stating that a case regarding mutation is pending between the parties before Tehsildar, Sadar in which the next date fixed was 11.07.2012 and the parties were willing to enter into a settlement in both the cases. The defendant no.1 requested the suit to be fixed for 11.07.2012. Accordingly, the next date in the suit was fixed for 11.07.2012, but thereafter the defendant no.1 did not appear in the suit and the learned trial court passed an order dated 25.10.2012 to proceed with the suit exparte. The suit was decreed ex-parte by means of a judgment and order dated 10.01.2013.

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On 06.07.2013 the opposite party no.1 filed an application under Order IX, Rule 13 C.P.C. for setting aside ex-parte judgment and decree dated 10.01.2013. The application was accompanied by an application under Section 5 of Limitation Act. It was stated in both the applications that the defendant no.1 had engaged Sri Harikesh Bahadur Singh, Advocate who had assured to look after the interests in the suit. He alleged that it appears that Sri Harikesh Bahadur Singh colluded with the other side and he did not defend the defendant no.1 in the suit properly. The defendant no.1 came to know about the ex-parte judgment and decree from Mohd. Naeem on 01.07.2013. On 02.07.2013 he engaged another counsel Sri Vidya Prasad Tripathi, Advocate and on 03.07.2013 he filed an application under Order IX, Rule 13 C.P.C.

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The petitioners filed objections against the application stating that the entire averments made in the application are false and false allegations had been levelled against the counsel for the defendant no.1.

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The petitioners filed a copy of vakalatnama executed by the opposite party no.1-Mohd. Ayub in favour of Sri Harikesh Bahadur Singh, Advocate on 13.01.2015 which was filed before the Tehsildar, Sadar in a case titled Subhash Chandra and others Vs. Sureela.

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A227 No. 7184 of 2025

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The learned trial court allowed the application under Order IX, Rule 13 C.P.C. by means of impugned order dated 19.02.2015 wherein the petitioners' application regarding subsequent engagement of Sri Harikesh Bahadur Singh, Advocate has been turned down on the ground that even if relations between two persons have turned sour, the same can improve in future. Therefore, the engagement of Sri Harikesh Bahadur Singh in the year 2015 does not affect the plea of misconduct committed by the aforesaid advocate in the year 2013.

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The learned counsel for the petitioners has submitted that the allegation levelled by the opposite party no.1 in the application under Order IX, Rule 13 CPC that his counsel Sri Harikesh Bahadur Singh had colluded with the other side was a bald and unsubstantiated allegation which stands falsified by the subsequent engagement of the same counsel by the same party. He has submitted that the aforesaid allegation levelled in the application does not give any sufficient explanation for non appearance of the opposite party no.1 in the proceedings before the learned trial court and it merely creates an excuse for his non appearance.

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The matter requires detailed consideration.

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Issue notice to the opposite party no.1, returnable at an early date.

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The learned counsel for the petitioners shall take requisite steps for service of notice within seven days.

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The opposite party no.2 has been impleaded in proforma capacity and therefore there is no need to issue any notice to her.

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The opposite party no.1 may file a counter affidavit within four weeks. The petitioners may file rejoinder affidavit within a period of two weeks thereafter.

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List this case in the week commencing 02.02.2026.

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A227 No. 7184 of 2025

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Keeping in view the aforesaid submissions, as an interim measure it is provided that till the next date of listing the operation and implementation of the impugned order dated 19.02.2015, passed by learned Civil Judge, Senior Division Pratapgarh in Misc. Case No.59 of 2013 arising out of Regular Suit No.352 of 2012 shall remain stayed.

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December 15, 2025

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Ram.

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(Subhash Vidyarthi,J.)

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Digitally signed by :- RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

Anuj Kumar and 2 Others v. Mohd. Ayub @ Sainik and Another

Case brief

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What the court decided

Anuj Kumar and 2 Others v. Mohd. Ayub @ Sainik and Another

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