Ex Parte Suit Cannot Be Dismissed on Ground of No Title in Absence of Pleading Contesting Title

1. Leave granted.

2. The present appeal raises an important

question touching upon the procedural

obligations of a civil court while adjudicating a

suit ex parte, and more particularly, whether

the absence of formal framing of issues vitiates

such proceedings, and what constitutes a

legally sustainable judgment in such

circumstances.

3. The appeal before the High Court was heard ex

parte. The Respondent, despite service, chose

not to enter appearance before the courts below

or before this Court. On 05.12.2025, Mr. Anup

Kumar, learned Counsel, who was present in

the Court was appointed as Amicus Curiae to

assist this Court in this matter. He was directed

to get in touch with Respondent directly in

writing, apprise him about pendency of present

appeal, his right to engage a counsel of his

choice and his right of being represented

through a legal aid counsel. Having done so, still

the Respondent remains unrepresented.

4. The instant appeal assails the judgment and

order dated 21.01.2025 (hereinafter referred as

“Impugned Judgment”) passed by the High

Court of Calcutta (hereinafter referred as “High

Court”), whereby it dismissed the F.A.T No. 47

of 2018 filed by the Appellant (Plaintiff) herein

and affirmed the judgment and decree dated

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26.10.2017 passed by the City Civil Court at

Calcutta (hereinafter referred as “trial court”),

vide which suit filed by the Appellant for specific

performance for agreement to sell was

dismissed ex parte.

5. The brief facts are that the original owner of the

property executed a 75 years lease in favour of

the Khimjis. Thereafter, Khimjis constructed a

building on the said property by the name of

“Shalimar Apartments”. During construction,

the Khimjis entered into a partnership with

other persons under the name and style of

Gulmohar Properties to complete the

construction and sell out the flats therein on

ownership basis including, Flat No. 61 in the

Shalimar Apartments lying and situate at 42-B,

Shakespeare Sarani, Kolkata-700017, along

with a car parking space (hereinafter referred as

“the suit property”).

6. Later, Gulmohar Properties executed an

agreement for sale in relation to the suit

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property, in favour of the Balwanis, with a

clause for assignment.

7. Pursuant to assignment clause, the Balwanis

transferred the property to Mohan Singh

Chopra (Respondent-defendant) by a tripartite

registered sale deed, in which Gulmohar

Properties, the Balwanis and the Respondent

were signatories.

8. On 27.01.1977, agreement for sale relating to

suit property was executed between Respondent

as Vendor and Appellant as Vendee in

consideration of ₹95,000/- out of which

₹90,000/- was paid with an undertaking that

balance of ₹5,000/- would be paid on the date

of execution of Deed of Conveyance and

presentation of the same before the Registrar of

Assurance. Appellant was also put into the

possession of the suit property. Respondent

also handed over the original documents,

indenture, Title Deeds etc. to the Appellant. On

various occasions request was made to the

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Respondent to execute the Conveyance Deed by

the Appellant but the same did not fructify.

9. The Appellant, with a grievance that despite

repeated requests Respondent neither accepted

balance amount of ₹5,000/- nor executed Deed

of Conveyance in his favour, filed a suit for

specific performance for agreement to sell dated

27.01.1977 against the Respondent (Defendant)

in relation to the suit property.

10. The courts below rejected the claim of the

Appellant on the ground that Appellant failed to

prove the title of the Respondent in the suit

property.

11. The counsel for Appellant submitted that since

no issue qua the title of the Respondent was

framed, the onus to prove the same did not fall

on the Appellant and the Appellant was not put

to notice of the said issue and therefore could

not be expected to lead evidence in support of

the same. Both the Courts below have

disregarded the procedure prescribed i.e., for

issues to be framed before trial, as the same

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puts the parties to notice of the facts that are

required to be proved in a given case.

12. Having heard the learned Counsel for the

Appellant, learned Amicus Curiae, and

considering the written submissions filed by the

Appellant and learned Amicus Curiae, we find it

apposite that prior to undertaking and

answering the aforementioned submissions as

raised, it is imperative to delve into the statutory

provisions as well as the existing jurisprudence

as developed by this Court while dealing with

such provisions relatable to what are the

essential requirements of a valid judgment in an

ex parte civil suit? And whether the courts below

have discharged their obligation in accordance

with law while deciding the suit ex parte?

13. Sub-section 9 of the section 2 of the Civil

Procedure Code, 1908 (hereinafter referred as

“CPC”) provides that “judgment” means the

statement given by the Judge of the grounds of

a decree or order.

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14. Section 2(2) of the CPC provides that “decree”

means the formal expression of an adjudication

which, so far as regards the court expressing it,

conclusively determines the rights of the parties

with regard to all or any of the matters in

controversy in the suit and may be either

preliminary or final.

15. Order XIV Rule 1(6) explicitly provides that

framing of issues is not required where the

defendant at the first hearing of the suit makes

no defense.

16. Order XX Rule 4(2) states that judgments of

Courts shall contain a concise statement of the

case, the points for determination, the decision

thereon, and the reasons for such decision.

“ORDER XX

4. Judgments of Small Cause Courts.—(1)

Judgments of a Court of Small Causes need not

contain more than the points for determination

and the decision thereon.

(2) Judgments of other Courts.—Judgments of

other Courts shall contain a concise statement

of the case, the points for determination, the

decision thereon, and the reasons for such

decision.”

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17. Though, the framing of issues where defendant

does not present a defense is not mandated, still

the importance of framing of issues cannot be

underscored. This Court in the case of Makhan

Lal Bangal v. Manas Bhunia and Others1,

while stressing upon the importance of framing

of issues held it as an imperative stage in any

civil proceedings as it narrows down the scope

of trial by separating wheat from the chaff.

Therefore, the real dispute between the parties

is determined and the conflict between the

parties is narrowed. The petition may be

disposed of at the first hearing if it appears that

the parties are not at issue on any material

question of law or of fact and the Court may at

once pronounce the judgment.

18. Further, in Ramesh Chand Ardawatiya v.

Anil Panjwani2, it has been opined that the

burden of proof on the Plaintiff is not too heavy

in ex parte civil suits. The Plaintiff, however,

must show prima-facie proof qua the existence

1 (2001) 2 SCC 652

2 (2003) 7 SCC 350

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of relevant facts and circumstances out of which

the cause of action has arisen. Therefore,

evincing that the court proceeds to record

evidence of the Plaintiff qua the cause of action

and accordingly decrees the suit. Further, it

held that in a case which has proceeded ex

parte, the court is not bound to frame issues

under Order XIV and deliver the judgment on

every issue as required by Order XX Rule 5. Yet

the trial court should scrutinize the available

pleadings and documents, consider the

evidence adduced, and would do well to frame

the “points for determination” and proceed to

construct the ex parte judgment dealing with

the points at issue one by one.

19. Furthermore, this Court in Maya Devi v. Lalta

Prasad3, has held that in case the Defendant

has been proceeded against ex parte, it is the

duty of the court to pass the decree only after

ascertaining the factual and legal veracity of the

claim of the Plaintiff.

3 (2015) 5 SCC 588

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20. This Court while considering the essential

requirements of a judgment in Balraj Taneja

and Another v. Sunil Madan and Another4

has held that Judgment as defined in Section

2(9) of the CPC means the statement given by

the Judge of the grounds for a decree or order.

What a judgment should contain is indicated in

Order XX Rule 4(2) which says that a judgment

‘shall contain a concise statement of the case,

the points for determination, the decision

thereon, and the reasons for such decision. It

should be a self-contained document from

which it should appear as to what were the facts

of the case and what was the controversy which

was tried to be settled by the court and in what

manner.

“Points for Determination” – Meaning and Role

21. The points for determination in a judgment are

essentially the legal and factual issues the court

must resolve. They correspond to

the issues framed during trial (Order XIV), but

4 (1999) 8 SCC 396

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in the judgment they are stated as the point(s)

to be decided. In Rameshwar Dayal v. Banda

(dead) through his LRs and Another5, the

Apex Court explained that ‘points for

determination’ in Rule 4(1) are obviously

nothing but ‘issues’ contemplated by Rules 1

and 3 of Order XIV. In practice, the trial court

first frames issues (points of controversy) after

examination of pleadings, the judgment then

recites these as “points for determination” and

answers them. These points focus the judgment

on the exact matters in controversy between the

parties. By explicitly listing points, the

judgment guides the parties and the Appellate

court to see what questions were in contest. The

court must give its finding on each point. Order

XX Rule 5 CPC further reinforces this: if issues

have been framed in the suit, the court “shall

state its finding or decision, with reasons, upon

each separate issue”, unless deciding one issue

resolves the suit. Thus, points for determination

ensure that every controverted issue is

5 (1993) 1 SCC 531

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addressed. A judgment that omits discussion of

issues in dispute is defective. It was held that a

Small Causes Court judgment which has not

even stated the points for determination and

given a finding thereon, is obviously not a

judgment within the meaning of Section 2(9) of

CPC.

22. Points for determination are the court’s

restatement of the disputed questions (issues)

that were placed before it, and the judgment

must answer each. They serve to concentrate

the court’s reasoning and ensure completeness

of adjudication.

23. Even when a defendant fails to appear or file a

written statement, the court cannot dispense

with the points for determination altogether.

In Balraj Taneja (supra), it was argued that if

no written statement is filed the facts as set out

in the plaint would be deemed to be admitted

and thus, the court need not indicate the points.

This Court while rejecting this submission held

that ‘whether it is a case which is contested by

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the defendants by filing a written statement, or

a case which proceeds ex parte and is ultimately

decided as an ex parte case, or is a case in which

the written statement is not filed and the case

is decided under Order VIII Rule 10, the court

has to write a judgment which must be in

conformity with the provisions of the Code or at

least set out the reasoning by which the

controversy is resolved’. In other words, even in

default or ex parte suits, the court should

identify the legal points (even if obvious) and

give a reasoned answer. Simply granting a

decree on default is not enough under Section

2(9) of CPC doing so would be a “material

irregularity”. Thus, points should be framed (or

recited from existing pleadings) and addressed

regardless of default.

24. The true scope for framing issues is that

evidence let in on issue on which the parties

actually went to trial should not be the

foundation for decision of another and different

issue, which was not present to the minds of the

parties and on which they had no opportunity

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of adducing evidence. But that rule has no

application to a case where the parties go to a

trial with knowledge that a particular question

is in issue, though no specific issue has been

framed thereon and adduce evidence relating

thereto. Please refer to Nagubai Ammal and

Others v. B. Shama Rao and Others6.

25. In Sayeda Akhtar v. Abdul Ahad7, it was held

that omission to frame an important issue may

sometimes cause prejudice to parties resulting

in failure to lead evidence on the point. But

where the parties were not only aware of the

point in controversy but also led evidence and

advanced their submissions, this Court held

that the High Court was not justified in

interfering with the finding of facts of the courts

below.

26. In the light of the above legal precedents, it can

be said that though the framing of issues in an

ex parte suit is not mandatory by virtue of Order

XIV Rule 6 of CPC, but the judgment must be in

6 (1956) 1 SCC 698

7 (2003) 7 SCC 52

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conformity with the provisions of the Code.

Thus, Order XX Rule 4 of CPC comes into

picture.

27. The courts must determine “points for

determination”, which are like issues, and

answer them to resolve the matter of

controversy between the parties.

28. Though framing of issues, as mentioned above,

although, is not mandatory yet, if the omission

to frame the same causes prejudice to the

parties, then the same can vitiate the trial. The

test for finding as to omission to frame the

issues have caused prejudice to the parties or

not can be laid down on the touchstone as to

whether parties that go to trial had knowledge

that (i) a particular question is in issue and (ii)

had opportunity to lead evidence on that issue.

29. In the present case, the controversy is regarding

suit for specific performance of an agreement to

sell, therefore, it is important to consider as to

what are the key essentials in a suit for specific

performance that a Plaintiff must prove to

succeed.

30. As laid down in Man Kaur (dead) by LRs v.

Hartar Singh Sangha (2010) 10 SCC 512, there must be a valid

contract; that defendant committed breach of

and readiness and willingness of the plaintiff to

perform his part of contract.

31. In present case, all the three essentials are

present. However, the suit was dismissed for

lack of title in favour of the Respondent. No

issues or points for determination were framed

for the same. Appellant at no point was given an

opportunity to lead evidence on the same. In the

absence of any issues, and especially in the

absence of any pleading contesting title of the

Respondent, the Appellant could not be

expected to prove such title in a suit for specific

performance of Agreement to sell. Therefore,

omission to frame issues has caused prejudice

to the Appellant.

32. Hence, the judgment and decree passed by the

trial court does not fulfil the requirements of a

judgment as provided for under the Code of Civil

Procedure, 1908. The judgments and decree of

both the courts below are, therefore, not in

accordance with law and thus, set-aside.

33. As a result;

i) Matter shall stand remanded to the trial

court for fresh consideration and decision.

ii) The Appellant-Plaintiff shall appear before

the trial court on 04.05.2026.

iii) Trial court shall issue notice on the

Respondent and grant time for completion

of pleadings.

iv) The court shall frame issues and accord

opportunity to the parties to lead evidence.

v) The court shall proceed to decide the same

at the earliest keeping in view the fact that

the suit is of the year 2007.

34. The Appeal is disposed of in above terms.

35. There shall be no order as to cost.

36. Pending application(s), if any, also stands

disposed of.

37. We acknowledge and appreciate the

constructive assistance rendered by the learned

Amicus Curiae and the learned Counsel for the

Appellant to this Court.

.……..………..……………………..J.

[ SANJAY KAROL ]

.……..………..……………………..J.

[ AUGUSTINE GEORGE MASIH ]

NEW DELHI;

APRIL 16, 2026.