Dismissed

Ram Swaroop (Deceased through LRs Janak Dulari and Another) v. Rajinder Singh

Himachal Pradesh HC9 Mar 2026CMPMO/480/2023

Case brief

AI extract

What is this about?

Petition to set aside an ex parte decree for specific performance and condone a long delay failed: the wife of the missing defendant did not prove she learned of the decree only later, her admission that she attended court since 2001 showed knowledge, and proceedings appeared motivated by land acquisition compensation. Concurrent findings were upheld and the petition dismissed.

What the court decided

AI extract

Ram Swaroop (Deceased through LRs Janak Dulari… — Specific Performance | Himachal Pradesh HC (2026)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.480 of 2023 Reserved on: 26.02.2026 Decided on: 09.03.2026

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Ram Swaroop(deceased) through LRs ….Petitioners

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Versus

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Rajinder Singh ...Respondent

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Coram

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Hon’ble Mr. Justice Romesh Verma, Judge Whether approved for reporting? Yes

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For the petitioners:	Mr. Pranshul Sharma, Advocate.
For the respondent:	Mr. Vipin Pandit, Advocate.

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Romesh Verma, Judge

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The present petition has arisen from the judgment as passed by the learned District Judge, Solan, District Solan, dated 13^th March, 2023, whereby the appeal preferred by the present petitioner has been dismissed and the order as passed by learned Civil Judge (Junior Division), Court No.1, Solan, H.P. dated 22nd April, 2016 has been affirmed.

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The brief facts of the case are that the present respondent filed a Civil Suit No.308/1/04/1998 for specific performance of a contract for sale against the defendant,

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namely, Ram Swaroop. The suit as preferred by the plaintiff/respondent was decreed by learned trial Court by passing ex-parte decree dated 01.06.2006. The petitioner/defendant preferred an application under Order 9 Rule 13 CPC read with Section 151 CPC for setting aside ex parte order dated 27.11.2003 and ex parte judgment and decree dated 01.06.2006 passed in Civil Suit No.308/1/04/1998, titled Rajender Singh vs. Ram Swaroop, before the learned trial Court. Along with the said application an application under Section 5 of the Limitation Act for condonation of delay in filing the application under Order 9 Rule 13 CPC read with Section 151 of CPC for setting aside ex parte order dated 01.06.2006 was also filed. The said applications were filed by the petitioner/applicant on 07.02.2011. In the applications, it was averred that the present respondent filed a suit for specific performance of a contract under Section 12 of Specific Relief Act, 1963 on the ground that the plaintiff and defendant entered into an agreement for the purchase and sale of land comprised in Khata No.70, Khatauni No.110, Khasra No.698/151, as per copy of jamabandi for the year 1991-92 for total sale

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consideration of Rs.1,80,000/-. The defendant put in appearance before the trial Court and filed a written statement raising preliminary objections with regard to limitation, suit hit by provisions of Order 2 Rule 2 CPC and barred by Section 10 of CPC. On merits, it was averred that no agreement had been entered into between the parties and the total sale consideration agreed between the parties was Rs.3,50,000/-. It was further averred that after filing the written statement, the defendant lost somewhere and in this regard, a missing report was lodged with the Police Station, Shimla by the wife of the defendant and rapat No.34 dated 13.02.2001 was entered by the police. The defendant could not be traced thereafter and more than 10 years have lapsed. The present application was filed by the wife of applicant/defendant. It was also averred that she had filed a suit for declaration before the learned Civil Judge (Senior Division), Solan for declaring Ram Swaroop to be dead, as he could not be traced.

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It was further averred in the application that the wife of the defendant/applicant had no knowledge about the pendency of case and came to know about the judgment and

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decree passed by learned trial Court on 14.12.2010 when she visited the Patwarkhana to obtain a copy of jamabandi for removal of entry of mutation No.172 regarding the mortgage of land with Smt. Paramjeet Behal. It was informed by the Patwari of Patwar Circle Salogra that the aforesaid land has been transferred in favour of plaintiff through a registered sale deed registered before Sub Registrar Solan on 22.12.2008 on the basis of judgment and decree passed in Civil Suit. It was averred that thereafter, the copy of judgment and decree was obtained and she preferred the present application for setting aside the ex parte judgment and decree. It was averred in the application that the defendant could not appear before the Court on 27.11.2003 as he had lost somewhere in the year 2001 and on account of missing of the defendant in the year 2000, he could not contact his counsel. The counsel for the defendant had pleaded no instructions before the Court on 27.11.2003 and the learned trial Court instead of issuing notice to the defendant proceeded him ex parte. The non-appearance of the defendant was not willful, but, bonafide as he was not aware of the aforesaid date and had lost somewhere, as is

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evident from the copy of rapat. Therefore, it was prayed that the ex parte order dated 27.11.2003 as well as judgment and decree passed by learned trial Court in Civil Suit No.308/1/04/1998 dated 01.06.2006 may be set aside.

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In reply to the application under Order 9 Rule 13

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of CPC, the respondent denied the contents of the application and preliminary objections with regard of maintainability, estoppel, locus standi, limitation etc. were taken. On merits, it was averred that the contents with respect to missing of the defendant are incorrect. The husband and wife hatched a conspiracy to take undue advantage and gain, after manipulating the facts of the case. Smt. Janak Dulari has no right, title or interest to file the present application. It was specifically denied that the applicant came to know from Patwari that the land has been transferred in favour of the non-applicant through a registered sale deed in pursuance to the judgment and decree as passed by the learned trial Court. It was denied that the defendant could not appear in the court as he was lost somewhere in the year 2001 and further he could not contact his counsel. It was denied that the Court was

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required to issue notice to Ram Sarup after his counsel pleaded no instructions. It was submitted by the present respondent that it was well within the knowledge of the applicant that the suit has been instituted and judgment and decree has been passed against them. Therefore, the respondent prayed for dismissal of the application.

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In the application filed under Section 5 of the Limitation Act for condonation of delay in filing application under Order 9 Rule 13 CPC, the same averments were made and it was pleaded that the wife of the defendant came to know regarding the proceedings on 14.12.2010 when she visited the Patwarkhana for obtaining the copy of jamabandi. The Patwari of the Patwar Circle told her that the aforesaid land has been transferred on the basis of sale deed, which was registered before the Sub Registrar, Solan on 22.12.2008 on the basis of judgment and decree passed by learned trial Court.

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The present respondent also filed reply to the application under Section 5 of the Limitation Act. It was stated in the reply that the delay which has occurred was willful and the applicant was well aware about the pendency

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of the proceedings. It was stated that any person filing written statement is legally bound to supply his address by filing address form duly signed, failing which the address given in the plaint has to be taken to be true and correct. It was averred that the missing report of the defendant was a result of manipulation and fabrication in order to prejudice the rights of the respondent. It was denied that the wife of the defendant was not aware of aforesaid proceedings and came to know about the same only on 14.12.2010 on visiting Patwarkhana. It was specifically submitted that Smt. Janak Dulari had due knowledge of agreement for sale of land, issuance of notices for specific performance of the contract, filing of the suit and passing of judgment and decree and even the execution of the same. It was submitted that even after coming to know about the judgment and decree on 14.12.2010, there was delay in filing the application. The delay of more than 55 months in filing the application was intentional and deliberate. Smt. Janak Dulari had no right to file the application nor the same was maintainable. It was averred that a substantial right has accrued in favour of the respondent, which cannot be defeated by Smt. Janak Dulari

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by instituting present proceedings, therefore, the application

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deserves to be dismissed.

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The applicant/petitioner filed rejoinder to the applications under Order 9 Rule 13 and Section 5 of the Limitation Act.

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Learned trial Court framed issues on 12^th March,

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2012 as follows:

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Issue No.1 Whether there are sufficient grounds to condone the delay in filing the present application under Order 9 Rule 13 CPC, as alleged? OPA

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Issue No.2. Whether there are sufficient grounds to set aside the ex-parte order dated 27.11.2003 and ex-parte judgment and decree dated

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1.6.2006 passed in Civil Suit No.308/01/4/1998, as alleged? OPP.

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Issue No.3. Whether the present application is not maintainable in the present for, as alleged? OPR

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Issue No.4 Whether the applicant has not come to the Court with clean hands, as alleged? OPR.

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Issue No.5 Whether the applicant is estopped by his acts, conduct, deeds and acquiescences from filing present application? OPR

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Issue No.6 Whether the applicant has no locus standi or authority to file the application? OPR. Issue No.8. Relief.

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and directed the parties to adduce evidence in support of their contentions.

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In order to prove her case, applicant Smt.Janak Dulari entered into the witness box and filed her affidavitexamination-in-chief Ext.AW/A, wherein she reiterated the contents as made in the applications. She stated in the affidavit that the plaintiff/respondent filed a suit for specific performance of a contract against the defendant on the pretext that the defendant agreed to sell the land bearing Khasra No.698/151 for a sum of Rs.1,80,000/- and he had paid the entire consideration to the defendant. As a matter of fact, no agreement was entered between the parties and agreement, if any, was sham transaction and it is null and void. The respondent/plaintiff was well aware about the missing of the defendant and in order to mislead the Court he obtained an ex parte decree on 01.06.2006. The applicant was not aware about the passing of decree dated 01.06.2006

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and she came to know about the same on 14.12.2010 when

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she went to Patwar Khana to get the copy of jamabandi. Patwari of Patwarkhana told her that the suit land was transferred in faovur of the present respondent/plaintiff on the basis of judgment and decree as passed by learned trial Court dated 01.06.2006. Therefore, she submitted that despite knowing the fact that the defendant was missing, the plaintiff/respondent obtained the decree in an illegal and invalid manner. As a matter of fact, the defendant was missing, therefore, the ex parte judgment, as passed by learned trial Court, is liable to be set aside and the ex parte order is required to be reviewed. In the cross-examination Smt. Janak Dulari stated that in order to conduct the case, her husband had engaged Mr. Amar Singh Kashyap, Mr. P.D. Goverdhan and Mr. R.S. Panwar Advocates. She stated that in her presence her husband never received any notice. She never met the counsel, who were representing her husband. She stated that file of case No.308/1/04/1998 was seen by her in the office of Mr.Avinash Sharma, Advocate. She stated that she does not know that her husband received amount of sale consideration of the suit land. There is specific

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admission in the cross-examination on her part that since 2001 she had been coming to the Court at Solan.

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In order to rebut the case of the applicant, the respondent Rajinder Singh entered into the witness box and filed his affidavit Ext. DW-1/A. He stated in his deposition that Ram Swaroop was duly served in Civil Suit No.308/1/04/1998. Ram Swaroop appeared in the Court and even filed the written statement. Thereafter, intentionally did not appear in the case and he was proceeded ex parte and the said fact finds mention in the copy of judgment and decree dated 01.06.2006. He has denied that after filing the written statement, Ram Swaroop went missing and could not be found. Smt. Janak Dulari, who claims to be the wife of Ram Swaroop had knowledge of the pendency of Civil Suit and she has concocted a false story that she came to know about the passing of the judgment and decree on 14.12.2010. The allegation that the judgment and decree has been obtained by playing fraud is totally wrong, baseless and incorrect. In the suit, Ram Swaroop was represented by Mr.Amar Singh Kashyap, Mr.P.D. Goverdhan, Mr. R.S. Panwar and Ms. Saroj Thakur, Advocates and the applicant

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intentionally did not examine any of those Advocates, as she was having due knowledge of the Civil Suit from day one and even that of the judgment and decree and the execution proceedings. Therefore, he stated that applications were filed on wrong facts and same deserves to be dismissed.

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In cross-examination, he denied all the contents and averments as made by the opposite side.

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Learned trial Court vide its order dated 22nd April, 2016 dismissed the applications filed by the petitioner. 13. Feeling dissatisfied, the applicant/petitioner preferred an appeal in the Court of learned District Judge, Solan on 09.09.2016 and the learned District Judge vide its judgment dated 13.03.2023 dismissed the appeal preferred by the present petitioner.

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Still feeling aggrieved, the applicant/petitioner has approached this Court against the judgment as passed by learned District Judge and the order as passed by learned trial Court.

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I have heard Mr. Pranshul Sharma, learned counsel for the petitioner and Mr. Vipin Pandit, learned counsel for the respondent.

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It is contended by Mr. Pranshul Sharma, learned counsel for the applicant that his client has been able to plead and prove that she came to know about the passing of judgment and decree only on 14.12.2010. Therefore, the application as filed for setting aside the ex parte judgment and decree and application under Section 5 of the Limitation Act ought to have been allowed. It is contended that it has come on record that the husband of the applicant who was defendant before the learned trial Court was missing and on that account he could not put in appearance before the Courts below, as a result of which, earlier he was proceeded ex parte and ultimately the judgment and decree was passed against him on 01.06.2006. He contended that the present petitioner came to know about passing of judgment and decree only on 14.12.2010 when she went to Patwarkhana in order to obtain the copy of jamabandi where she was informed by the Patwari that the suit land stands transferred in the name of plaintiff/respondent on the basis of judgment and decree as passed by learned trial Court in Civil Suit No.308/1/04/1998 dated 01.06.2006. He submits that, therefore, the orders as passed by the Courts below are

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erroneous since his client has been able to establish that

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there are plausible reasons for setting aside the ex parte judgment and decree and the delay in filing the application under Order 9 Rule 13 deserves to be allowed.

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On the other hand, Mr. Vipin Pandit, learned counsel for the respondent/plaintiff has contended that the applicant/petitioner has not approached the Court with clean hands and has suppressed the material facts from the Court. He submitted that the applicant was well aware about the issuance of notice to the defendant Ram Swaroop, institution of the suit for specific performance of a contract, ex parte order against Ram Swaroop, passing of ex parte judgment and decree dated 01.06.2006, filing of execution petition and registration of sale deed. Therefore, no case has been made out by the applicant for setting aside ex parte decree and for condonation of delay in filing the application. He further contended that the present proceedings are sheer abuse of process of law and the same have been initiated only after the suit land stands acquired by the competent authority in order to get the amount of compensation.

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The perusal of the record and evidence as led by the parties demonstrates that civil suit for specific performance of a contract was filed by the plaintiff/respondent in the Court of learned Civil Judge and in that suit the defendant Ram Swaroop was duly served. He also filed written statement in the said civil suit. He was being represented by Mr. Amar Singh Kashyap, Mr. P.D. Goverdhan, Mr. R.S. Panwar and Ms.Saroj Thakur, Advocates. On 27.11.2003, Mr. Shashi Pandit, Advocate, appeared for the plaintiff and Mr. R.S. Panwar, Advocate, appeared on behalf of the defendant, as is evident from the perusal of Ext. P-2 page 102 of the trial Court record. On the said date, Mr. R.S. Panwar, Advocate, pleaded no instructions and learned trial Court ordered that since none was present for the defendant, he was proceeded ex parte and the suit was put up for ex parte evidence on 14^th January, 2004. Ultimately learned Civil Judge (Junior Division), Solan vide its judgment and decree dated 01.06.2006 decreed the suit as filed by the plaintiff ex parte. 19. The reasons which have been given in the applications under Order 9 Rule 13 of CPC and Section 5 of

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the Limitation Act are that the applicant was not aware about the passing of any judgment and she came to know about the same on 14.12.2010 when she visited the Patwarkhana to obtain copy of jamabandi for removing the entry of mutation No.172 regarding the mortgage of land with Smt.Paramjeet Behal and she had paid the mortgage amount of Rs.1,50,000/- to Smt. Paramjeet Behal. She has averred that the Patwari of Patwar Circle told her that the aforesaid land has been transferred in favour of the plaintiff/respondent through a registered sale deed dated 22.12.2008 on the basis of judgment and decree as passed by learned trial Court. Thereafter, the applicant obtained the copies of the sale deed, copy of judgment and decree and preferred the applications. The said averments as made by the applicant have not been corroborated by leading any cogent and authentic evidence. Save and accept the bald statement of the applicant/petitioner, nothing concrete has been placed on record to show that the applicant went to the Patwari on 14.12.2010 and only then she came to know about the passing of judgment and decree. Neither said Patwari has been examined nor any revenue record has

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been placed on record in order to substantiate her contention that she had gone to Patwarkhana for obtaining the copy of jamabandi for removing the entry of Mutation No.172 regarding the mortgage. The said averments are only on the papers and there is no proof qua the same. Once the applicant has specifically pleaded that she came to know only on 14.12.2010 when she went to Patwarkhana, it was incumbent upon her to have substantiated her claim by examining some independent witness and placing on record the said documents, which she failed to do so. Therefore, the judgment passed by learned District Judge, Solan and order passed by learned trial Court are legal and valid.

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The applicant has also entered into the witness box in order to put forward and corroborate her claim. She admitted that she had cordial relations with her husband and they used to share happiness and sorrow with each other, but she denied that her husband told her about the pendency of the case. The material admission which has been made by the applicant is that when she admitted in her cross- examination that she had been coming to the Solan Court since 2001. This admission on the part of the applicant is

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material and it goes to the root of the case. Once the applicant was having good relations with her husband and she had been coming to the Court at Solan since 2001, in common parlance, it cannot be believed that her husband must not have told her about the pendency of the case and keeping in view the admission of the applicant, the only conclusion which can be drawn is that she was well aware about the pendency of the proceedings and the application which had been preferred for setting the ex parte decree after elapse of more than 5 years is an afterthought to wriggle out of the judgment and decree.

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It has come on record and even in the statements of the parties that the suit land has been acquired for four lane project and the same fact has come in the crossexamination of the applicant. More so, one declaratory suit was also filed by the applicant ,in which decree was passed on 14.08.2012. Therefore, it cannot be ruled out that on account of acquisition proceedings and payment of amount of compensation, the present proceedings have been instituted to get the claim in the land in question. In her cross-examination, she has shown her inability to explain the

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delay in filing the application. She further admitted that she cannot tell when was the application filed, whether after two months, three months or after how many months.

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It has come on record and as per own case of the applicant that she came to know about the decree on 14.12.2010, but the applications have been filed on 16.02.2016. As per the record, certified copy of execution, copy of summons were applied on 04.01.2011 and the same were supplied on 13.01.2011. Certified copy of the judgment passed in a suit was applied on 04.01.2011, which was supplied on 12.01.2011 and the copy of sale deed was also supplied on 15.12.2010. The present petitioner has failed to explain the delay in applying the copies and not filing the applications approximately within 30 days even after supply of the copy of judgment and decree. The conduct of the applicant creates doubt about the veracity of the present application since, it has come on record that the present proceedings were initiated after acquisition proceedings started by the National Highway Authority of India for payment of amount of compensation. The applicant has failed to plead, prove and substantiate her case with respect

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to the setting aside of the ex parte judgment and decree and condonation of delay in filing the application for setting aside the said judgment and decree.

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It is elementary that Court should not adopt hyper technical and injustice oriented approach in dealing with the application for condonation of delay. As a matter of fact, the catena of judgments say that the Court should follow pragmatic line to advance the substantial justice in favour of the genuine and prudent person. But, at the same time, it must also be borne in mind that while construing the sufficient cause while dealing with the application under Section 5 of the Limitation Act, substantive right in favour of the decree holder accrues and this right ought not to be outrightly disturbed. The Court should maintain balance between the the decree holder and judgment debtor while dealing with application under Section 5 of the Limitation Act. It is well settled that the Courts despite establishment of sufficient cause for various reasons may refuse to condone the delay depending upon the bonafide of the party. It has been repeatedly held by the Hon’ble Supreme Court that when the mandatory provision is not complied with and delay

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is not properly and satisfactorily explained, it ought not to be

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condoned on sympathetic grounds alone. The Liberal approach in considering the sufficiency of cause for delay should not be allowed to override the substantial law of limitation. Concepts such as “liberal approach”, “Justice oriented approach”, “substantial justice” cannot be employed to the substantial law of limitation”, The expression “sufficient cause’ as occurring in Section 5 of the Limitation Act cannot be liberally interpreted if negligence, inaction or lack of bonafide is writ large.

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The Hon’ble Apex Court in case titled as Pathapati Subba Reddy (died) by LRs and others vs. The Special Deputy Collector (LA), Special Leave Petition(Civil) No.31248 of 2018 , held as under:

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“26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

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(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

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(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

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(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

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(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act; (v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

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(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

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(vii) Merits of the case are not required to be considered in condoning the delay; and

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(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and 18 | 2 2 condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.”

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The above exposition of law clearly stipulates that

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liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind, but, the same cannot be used to defeat the substantial law of limitation.

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Learned counsel for the petitioner has contended that the learned trial Court has erred in proceeding Ram Swaroop ex parte when his counsel Mr. R.S. Panwar pleaded no instructions. He states that only option before the trial Court was to issue notice to the defendant on account of pleading of no instructions by his counsel. Therefore, ex parte judgment and decree could not have been passed against the defendant. To his this submission, the judgment of Hon’ble Apex Court is the answer. The Hon’ble Supreme Court in case titled as Shri Digant vs M/s P.D.T. Trading Co. & others, Civil Appeal No(s).13801 of 2025, held as follows

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“20. The only issue that fell for consideration of the High Court was whether, on account of defendants’ lawyer’s pursis, claiming ‘no instructions’, the trial court ought to have proceeded to decide the suit without ascertaining whether the defendants were duly informed about lawyer’s withdrawal from the case.

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23. In the case on hand, the appellate court had considered in detail the issue as to whether the trial court was justified in proceeding with the case, without further notice to the defendants, after submission of pursis (Exh.42) by defendants’ counsel, claiming no instructions. After a threadbare analysis and taking into consideration the surrounding circumstances, the appellate court held that the trial court committed no wrong in proceeding with the matter. The appellate court noticed that the advocate representing the defendants had claimed no instructions but not sought withdrawal of his Vakalatnama and the matter thereafter remained pending for over three months till it was decided in March 2015. In between no effort was made by the defendants to engage another lawyer. Moreover, the defendants did not come up with a case that their lawyer’s notice was not served on them therefore, they could not engage another counsel. Besides that, the record also indicated that the intention of the defendants was to delay the proceedings because earlier also the suit had proceeded ex parte against them though, later, those orders were recalled…...”

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In the case in hand also learned counsel pleaded

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no instructions in the matter. He did not sought withdrawal of

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the Vkalatnama therefore, in view of exposition of law laid

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down by Hon’ble Apex court the point urged by learned

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counsel for the petitioner does not have force.

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The Hon’ble Supreme Court in the aforesaid judgment has also discussed the scope of interference while exercising the power of Article 227of Constitution of India.

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“22. The scope of High Court’s jurisdiction under Articles 226/227 fell for consideration before a threeJudge Bench of this Court in Radhey Shyam & another v. Chhabi Nath & Ors. 1 This Court held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226, though they may be questioned in the supervisory jurisdiction of the High Court under Article 227 of the Constitution. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.”

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23. In the case on hand, the appellate court had considered whether the proceeding in detail the issue as to court was justified in trial with the case, without further notice to the defendants, after

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submission of pursis (Exh.42) by defendants’ counsel, claiming no instructions. After a threadbare analysis and taking into consideration surrounding circumstances, the appellate court held that the trial court had committed no wrong proceeding with the matter court representing with noticed the the that defendants matter. The appellate Court noticed tht the advocate representing the defndants had claimed no instructions but not sought withdrawal of his Vakalatnama and the matter thereafter remained pending for over three months till it was decided in March 2015. In between no effort was made by the defendants to engage another lawyer. Moreover, the defendants did not come up with a case that their lawyer’s notice was not served on them therefore, they could not engage another counsel Besides that, the record also indicated that the intention of the defendants was to delay the proceedings because earlier also the suit had proceeded ex parte against them though, later, those orders were recalled. Therefore, in our view, once the appellate court took into consideration all relevant aspects including the fact that pursis (Exh.42) did not seek withdrawal of the Vakalatnama, and withdrawal was not even permitted, there was no such jurisdictional error which warranted exercise of powers under Article 227 of the Constitution of India. The High Court without any justification procedure went consider the procedure prescribed for withdrawal Vakalatnama when neither withdrawal of Vakalatnama was permitted by the Trial Court nor the pursis prayed for its withdrawal. In such

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circumstances, the entire exercise of the High Court was misconceived. More so, when the view taken by the appellate Court that defendant cannot take advantage of his own wrong was a plausible view based on materials available on record. Hence, in our view, appellate court’s order was not amenable to interference in exercise of jurisdiction under Article 226/227 of the Constitution of India. The High Court clearly exceeded its jurisdiction under Article 2278 of the Constitution in interfering with well reasoned order of the appellate Court.”

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Similar law point was laid down by the Hon’ble Supreme Court in case titled as Garment Craft vs. Prakash

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Chand Goel, (2022) 4 SCC 181 , wherein in paras 15 and 16,

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it has been held as under:

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“15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based.Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal.1 The jurisdic-

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tion exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.

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Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed:-

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"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the

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High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

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19. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence.The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt

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that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution.

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In the present case the courts below had the occasion to go into detail the factual and evidentiary aspect of the matter and have come to the conclusion that the case as set up by the applicant/petitioner does not fall within the parameters as laid down by the Hon’ble Apex Court for setting aside the ex parte judgment and decree and for condonation of delay. The Courts below have decided the matter after appreciating the oral as well as documentary evidence placed on record and have thrashed the controversy in its right perspective.Therefore, in the opinion of this Court, the Courts below have rightly passed the judgment/order and there is no scope of interference in the same.

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