Laxmi Shankar Trivedi and 2 Others vs Vinay Kumar Jain and 6 Others

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 08.04.2025, passed by learned Additional Civil Judge, Senior Division, Court No.48, Barabanki allowing an application filed by the defendants-opposite parties under Order IX, Rule 7 C.P.C. in Regular Suit No.236 of 2003 subject to payment of rupees 200 as costs and providing that the order dated 26.04.2018, whereby the suit was ordered to proceed ex parte would stand set aside. The petitioner had challenged the aforesaid order by filing Civil Revision No. 27 of 2025, which has been dismissed by means of a judgment and order dated 14.10.2025 passed by the learned District Judge, Barabanki and the validity of the revisional order has also been challenged through this petition.

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Briefly stated the facts of the case are that the petitioners filed a suit for perpetual injunction against the defendants-opposite parties inter alia pleading that the property in dispute came to the plaintiffs' father, original plaintiff late Radheshyam (the predecessor in interest of the petitioners in a decree dated 15.03.1927, passed by the learned Civil Judge, Barabanki in a suit for partition. The property is used for cremation of deceased persons of the family of the plaintiffs, and some samadhis are constructed thereon. The plaintiffs stated

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A227 No. 906 of 2026

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that the opposite parties are trying to dispossess the plaintiffs from their property by carving out plots and selling the same. The defendants had put in an appearance before the trial court and filed a written statement as well as objections against the application for temporary injunction. After hearing the parties, the trial court allowed the application for temporary injunction by means of an order dated 13.09.2005 directing the defendants not to interfere in possession of the plaintiffs over the property in dispute. Thereafter, the plaintiff filed another application under Order XXXIX, Rules 1 and 2 CPC for restraining the defendants from alienating the property in dispute during the pendency of the suit and this application was also allowed by means of an order dated 26.05.2007 whereby the earlier order dated 13.09.2005 was clarified and it was stated that the order included a restraint against transfer of the property.

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Thereafter, the defendants stopped participating in the proceedings of the trial and on 26.04.2018, the trial court passed an order that the matter was fixed for recording the evidence of the defendants. In spite of the grant of a last opportunity, the defendants have not adduced any evidence and they have not cross-examined the witnesses of the plaintiff. Therefore, the suit was ordered to proceed ex parte. On 10.12.2019, the defendants filed an application under Order IX, Rule 7, read with Section 151 CPC stating that the defense was being pursued by defendant no.2 Vipin Kumar Jain. Their counsel had told them that they need not come to court and whenever their presence would be required, they would be intimated. The defendants had appointed a power of attorney holder, Shri Avinash son of Ghanshyam, who looked after the property and do pairavi of the case along with defendant no.2. Thereafter, defendant no.2 felt ill, and he could not contact his counsel. On 08.12.2019, the defendants came to know that the suit was proceeding ex parte since 26.04.2018.

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The plaintiffs filed objections against the application inter alia stating that after the passing of the temporary injunction order dated 13.09.2005, the defendants executed a power of attorney dated 03.04.2007. Thereafter, the original plaintiff had filed another application for temporary injunction, upon which the order dated 26.05.2007 clarifying that the temporary injunction order dated

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13.09.2005 also amounts to a restraint against transfer of the property. The power of attorney was executed on 03.04.2007 by Beena Jain and three other persons. Beena Jain died on 14.01.2013 and Rajshekhar Jain has died on 26.10.2017 and thereafter, the power of attorney has became null and void. It was in connivance with the power of attorney holder Avinash Mishra, that a Regular Suit No.233 of 2016 titled Mahendra Tiwari Vs. Beena Jain and others was filed. Although Beena Jain had died about three years prior to the filing of the suit and Rajshekhar had died on 26.10.2017, by concealing this fact a compromise was entered into in Regular Suit No. 233 of 2016 through the power of attorney holder, on 11.09.2019, and the suit was decreed on 16.09.2019 on the basis of the compromise and thereafter on 09.07.2020 the opposite parties have transferred the property in dispute. The petitioners have filed an F.I.R., bearing Case Crime No. 519 of 2021, under Sections 419, 420, 467, 468, 471 IPC in P.S. Kotwali Nagar, District Barabanki in this regard and after investigation, the investigating officer submitted a charge sheet.

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Thereafter, a sale deed dated 09.07.2020 was executed in violation of the temporary injunction order dated 13.09.2005 passed in the suit. The application under Order IX, Rule 7 CPC has been allowed by the impugned order dated 08.04.2025, passed by the learned Additional Civil Judge, Senior Division, Court No.48 Barabanki wherein the objections raised by the petitioners have been narrated in detail, but in the reasoning of the court recorded in the order for allowing the application, there is absolutely no reason for discarding the objections of the petitioner. The trial court merely stated that keeping in view the averments made in the application, it deserves to be allowed.

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The learned counsel for the petitioner has submitted that the trial court has discretion to allow an application under Order IX, Rule 7 CPC, and the discretion has to be exercised in case the defendant assigns good cause for its previous non-appearance. He has further submitted that while deciding an application under Order IX Rule 7 CPC, the court has to take into consideration the conduct of the party filing the application and in case conduct appears to be mala fide or mischievous the application of such a party cannot be allowed. As per

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the learned counsel for the petitioner, the defendants had full knowledge of the suit, they had filed written statement and objections against the application for temporary injunction, it was after taking into consideration the objections of the defendants that an order of temporary injunction was passed, restraining the defendants from transferring the property in dispute. It was thereafter that the defendants stopped appearing in the suit and they have sold away the property in dispute through their power of attorney holder, in violation of the temporary injunction order granted against them. After having transferred the property, the defendants have again appeared and filed an application under Order IX Rule 7 CPC.

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The learned counsel for the petitioners has submitted that this conduct of the defendants establishes a lack of good cause for setting aside the order to proceed ex parte.

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The matter requires detailed consideration.

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Issue notice to the opposite parties, returnable at an early date.

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The learned counsel for the petitioners shall take requisite steps in this regard within one week from today.

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The opposite parties may file their counter affidavit within four weeks. In case counter affidavit is filed, the petitioners may file rejoinder affidavit within two weeks.

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List in the week commencing 4th May, 2026.

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Keeping in view the submissions advanced, as an interim measure, it is provided that the operation and implementation of the 08.04.2025, passed by learned Additional Civil Judge, Senior Division, Court No.48, Barabanki allowing the application under Order IX, Rule 7 CPC (Annexure no.2 to the petition) as well as the the proceedings of Regular Suit Number 236 of 2003 titled Radhey Shyam and others Vs. Vinay Kumar Jain and others, pending in the court of Civil Judge Senior Division, Court No.48, Barabanki shall remain stayed.

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March 13, 2026 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

Laxmi Shankar Trivedi and 2 Others v. Vinay Kumar Jain and 6 Others

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Laxmi Shankar Trivedi and 2 Others v. Vinay Kumar Jain and 6 Others

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