Jagdish Mahto Vs Santosh Mahto

For the Petitioners : Mr. Vishal Kumar Rai, Advocate. For the Opp. Party : Ms. Anshu Kumari, Advocate. Mr. Shashikant Jaiswal, Advocate. Mr. Abhinav Kumar, Advocate.

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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2. This Civil Miscellaneous Petition has been filed under Article 227 of the Constitution of India with the prayer for setting aside the order dated 27.11.2025 passed in Original Suit No. 12 of 2024 by the Civil Judge (Senior Division)- I, Khunti whereby and where under the application filed by the petitioners/defendants under Order IX Rule 7 read with Section 151 of the Code of Civil Procedure has been dismissed and also to set aside the order dated 26.09.2024 passed in the said case by the said court, by which the petitioners have been debarred from filing the written statement.

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3. The brief fact of the case is that the petitioners are the defendants in the said suit which has been filed by the opposite party/plaintiff for preliminary decree for partition with 1/4^th share to the plaintiff. The defendant nos. 1, 2 and 3 appeared in said suit on 20.06.2024 and filed petition for time for filing of the written statement but they did not file the written statement. Consequent upon the same, by order dated 26.09.2024 the defendants of the said suit were debarred from filing the written statement, as they failed to file any written statement even after the extended period of 90 days, for the same. The plaintiff examined three witnesses, the witness no.2 and 3 were respectively produced on 05.07.2025 and 31.07.2025 and were cross-examined by other set of defendants, but these defendants did not show any eagerness to participate in the proceeding. After cross-examination and discharge of the three witnesses, the petitioner who is the defendant no.3 filed a petition under Order IX Rule 7 of the Code of Civil Procedure contending therein that the defendant nos.1 and 2 are female, the defendant no.3 due to his illness, could not attend the Court. Hence made the said prayer which, as already indicated in the aforementioned paragraph of this judgment, was rejected.

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4. The learned Civil Judge, Senior Division- I, Khunti considered that the defendant nos. 1, 2 and 3 have been given ample opportunity to file their written statement and they have knowledge about the examination of the witnesses of the plaintiff. The learned Civil Judge, Senior Division- I, Khunti considered that at the time of examination of the said three witnesses of the plaintiff, the learned counsel for the

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petitioners here in, himself submitted before the Civil Judge, Senior Division- I, Khunti that he has no instruction on behalf of the petitioners here in and by saying so did not cross-examine the witnesses. The learned Civil Judge, Senior Division- I, Khunti further considered that the defendants have not produced any document in support of the illness of the defendant no.3 and the delay is of more than one year, and thus without finding any good cause for the previous non-appearance of the defendants, the learned Civil Judge, Senior Division-- I, Khunti rejected the petition filed under Order IX, Rule 7 read with Section 151 of the C.P.C. dated 13.08.2025 and put up the case for hearing on 02.12.2025.

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5. The learned counsel for the petitioner submitted that the learned Civil Judge, Senior Division-I, Khunti erred in rejecting the prayer of the petitioners without application of mind, in a mechanical manner. On being asked by this Court as to what was the illness from which the petitioner no.1 herein, who was the defendant no.3 of the said suit, was suffering from for over a period of one year; it is submitted by the learned counsel for the petitioners that he has no knowledge as to which illness, the petitioner no.1- who is the defendant no.3 before the learned court below was suffering from. In support of his contention, learned counsel for the petitioners relied upon the judgement of SREI International Finance Limited versus Fairgrowth Financial Services Ltd. and Another reported in (2005) 13 SCC 95 . In the facts of that case where the appellant before the Supreme Court of India was a company

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and the ground for setting aside the ex-parte decree was that the

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company instructed that its Solicitors in Calcutta who in their in turn instructed the Solicitors in Bombay to appear and plead for the appellant before the Hon’ble Supreme Court of India but though initially, there was an appearance by the Bombay Solicitors, but later on there was a default in appearance and sometime before the matter was taken up for hearing by the Special Court, one of the member of the firm of Solicitors of the appellant at Calcutta was looking after the appellant’s case, suffered serious accident and remained immobilised for a period of about nine months. In such circumstances, the Hon’ble Supreme Court of India held that a liberal view ought to have taken by the Special Court and ex parte decree should have been set aside. Hence, it is submitted that the prayer as prayed in this C.M.P. be allowed.

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6. The learned counsel for the plaintiff-opposite party here in, on the other hand vehemently opposes the prayer and it is submitted by learned counsel for the opposite party/plaintiff that the facts of the this case are entirely different from the facts of the case of SREI International Finance Limited versus Fairgrowth Financial Services Ltd. and Another (Supra) because in this case before the Court, the petitioner are not able to plead or prove as to which illness the petitioner no.1 herein was suffering from for over a period of one year. It is then submitted that the plea of the illness is a vague one and there being absolutely no good cause shown by the petitioner, the learned Civil Judge, Senior Division-I rightly rejected the prayer for setting aside the set ex parte order. Hence, it is submitted that no illegality has

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been caused by the learned Civil Judge, Senior Division-I, Khunti in passing the impugned order. Therefore, this C.M.P. being without any merit be dismissed.

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7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the Hon’ble Supreme Court of India in the case of Shalini Shyam Shetty and Another v. Rajendra Shankar Patil reported in (2010) 8 SCC 329 in para 49 has formulated the principles of exercise of the High Court’s Jurisdiction under Article 227 of the Constitution of India para-49 (e), (f) and (g) of which read as under:-

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“49. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated: Xxxxxxxxxxxxxxxxxxx

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Xxxxxxxxxxxxxxxxxxx

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(e) According to the ratio in Waryam Singh [AIR 1954 SC 215], followed in subsequent cases, the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and courts subordinate to it, “within the bounds of their authority”.

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(f) In order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested in them and by not declining to exercise the jurisdiction which is vested in them.

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(g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.

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Wherein the limitation in exercise of power under Article 227 of

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the Constitution of India has been mentioned.

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8. Now coming to the facts of the case, the only ground that the petitioners have agitated before the learned Civil Judge, Senior DivisionI Khunti, is because of illness of defendant no.3 who is the petitioner

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no.1 of this case. They did not file the written statement neither they

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participated in the cross-examination of the witnesses nor they instructed their counsel who was still appearing in the record and was never discharged nor their Advocate has given any no instruction memo in writing in the record. As fairly submitted by the learned counsel for the petitioner, the petitioners till today do not know from which illness the petitioner no.1 is suffering from; which made him incapacitated either to instruct the counsel or to participate in the cross-examination of the witnesses or to file written statement. Under such vague plea, the learned Civil Judge, Senior Division-I, Khunti having been arrived at a conclusion that there is no good cause for exercising the power under Order IX Rule 7 of the Code of Civil Procedure and having rejected the petition under Order IX Rule 7 of the C.P.C.; this court in view of the limited scope in exercising the power under Article 227 of the Costitution of India for interfering with the impugned order; is of the considered view that this is not a case where the impugned order is to be interfered with, in exercise of power under Section 227 of the Constitution of India. Needless to mention the facts of this case are entirely different from the facts of the case of SREI International Finance Limited versus Fairgrowth Financial Services Ltd. and Another (Supra) because in that case, the reason assigned was that the counsel because of a serious accident remained immobilised for a period of nine months but in this case the petitioners do not know the illness from which the petitioner no.1 was suffering from, which incapacitated him in either filing the written statement or taking part in the

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proceedings of the suit. Accordingly, this Civil Miscellaneous Petition is being without any merit is dismissed.

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9. In view of the disposal of the instant C.M.P., the interim order dated 12.02.2026, is vacated.

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10. The Registry is directed to intimate the court concerned forthwith.

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