Madhya Pradesh High Court
Rajat S/O Nemichand Maru Through … vs Kapil on 31 March, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:4705
1 FA-329-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
FIRST APPEAL No. 329 of 2024
RAJAT S/O NEMICHAND MARU THROUGH CONSTITUTED
GENERAL POWER OF ATTORNEY SHRI NEMICHAND MARU AND
OTHERS
Versus
KAPIL AND OTHERS
Appearance:
Shri Amit Agrawal, learned senior counsel with Shri Arjun Agrawal,
learned counsel for the appellants.
Shri Rohit Kumar Mangal and Shri Shri Somesh Gobhuj, learned counsel
for the respondent Nos.6 and 7.
Shri Lucky Jain, learned counsel for the respondent Nos.1 and 2
[CAVEAT].
Reserved on : 22.01.2026
Pronounced on : 31.03.2026
.......................................................................................................................................................
ORDER
This is an appeal by the defendant Nos.4 and 5, who were ex-parte
before the trial court challenging the judgment and decree dated 29.01.2024
passed in Regular Civil Suit-A 1180000/2014.
Facts of the case as per pleadings
2. The respondent Nos.1 and 2 were plaintiffs and respondent Nos.3, 4
and 5 were the defendant Nos.1, 2 and 3 before the trial court. An agreement
to sell was executed on 10.04.2006 by the respondent Nos. 3 to 5 (they shall
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
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be referred as defendant nos. 1 to 3 hereinafter) in favour of respondent Nos.
1 and 2 (who shall be referred as plaintiffs hereinafter) regarding plot
No.20/2, Baikunth Dhaam Colony, Indore comprising survey No.761 and
762. The terms of the agreement were that for a total area of 10000 Sq.Fts.,
the plaintiffs would pay a total sale consideration of Rs.2,03,21,000/-. It was
recorded in the agreement that advance payment of Rs.21.21 Lacs was
received at the time of execution of the agreement and the first installment
out of balance consideration to the tune of Rs.19 lacs was to be paid on or
before 15.05.2006 and rest of the sale consideration of Rs.92 lacs was to be
paid by 20.08.2006.
3. It was also mentioned in the agreement to sell (Ex.P-1) that the suit
property was encumbered with a loan of Rs.70 lacs from SBI and it was an
stipulation in the agreement that out of the above mentioned sale
consideration, the defendant Nos.1 to 3 (owners of the property) shall repay
the loan and get the property redeemed for completing the sale infavour of
plaintiffs. It was also an stipulation in the agreement that plaintiffs could
directly deposit the entire outstanding amount of Rs.70 lacs to the bank in
order to facilitate the completion of sale.
4. Significantly, the plaintiffs and defendant Nos.1 to 3 agreed in terms of
para 6 of the agreement that the procedure of due diligence of publication of
a public notice is waived. In terms of para 12 of the agreement, it was
mentioned that if the balance sale consideration is not paid as per scheduled
time line by 15.05.2006 and 20.08.2006, the agreement to sell shall
automatically stand cancelled and the advance would stand forfeited. The
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
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plaintiffs three days prior to the date of first installment of Rs.90 lacs issued
a letter on 12.05.2006 to the defendant Nos.1 to 3 demanding a copy of the
sale deed dated 03.11.2004 (Ex.P-5) and copy of resolution of Shri Ishar
Alloys and Steel Limited showing the purpose of sale of the plot in four parts
to four companies. This entailed a prolonged communication between the
plaintiffs (prospective purchasers) and defendant Nos.1 to 3 (the sellers).
5. The defendant Nos.1 to 3 in their replies stated that all this demand of
documents etc. is being raised only to avoid payment as the plaintiffs
failed in arrangement of funds and are not able to make payment. The
plaintiffs though denied this assertion of the defendant Nos.1 to 3, however,
they did not offer payment.
6. Ultimately, on 21.11.2008, the suit was filed by the plaintiffs
(respondent Nos.1 and 2) against the defendant Nos.1 to 3. The present
appellants were not party to the suit originally. The appellants were not
aware of the dispute between the plaintiffs and the defendants No.1 to 3.
7. The original owners i.e. defendant Nos.1 to 3 entered into an agreement
to sell with the present appellants in the year of 2008 thereby agreeing for
sale of the property situated at house No.20/2 Baikunth Dhaam Colony,
Indore in survey No.761 and 762 admeasuring 10000 sq.fts. for sale
consideration of Rs.2,27,000,00/-. The original owner never disclosed to the
present appellants about the existence of any earlier agreement with the
plaintiffs nor about pendency of the dispute before the Court. Pursuant to
said agreement to sell, the original owners (defendant Nos.1 to 3) executed
registered sale deed on 29.03.2010. The present appellants thereafter
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
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migrated to USA respectively w.e.f. 09.08.2011 and 01.09.2011.
8. The appellants were not aware about the pendency of civil suit, thus,
they were in a bonafide belief that there is no dispute regarding property they
have purchased, thus they migrated to USA.
9. However, in the suit filed by the respondent Nos.1 and 2/plaintiffs, out
of original owners the defendant Nos.1 and 3 became ex-parte and defendant
No.2 filed his written statement. As regards the present appellants, the
plaintiffs filed an application under Order 1 Rule 10 of the Code of Civil
Procedure for impleading the present appellants and also their lease holders
to whom the suit property was leased out by the appellants as party
respondents, however, the trial court dismissed the said application vide
order dated 15.11.2021
10. The order dated 15.11.2021 of the trial court was challenged by the
respondent Nos.1 and 2/plaintiffs before this Court by filing miscellaneous
petition i.e. MP No.4409/2021. The said miscellaneous petition was allowed
by this Court vide order dated 14.09.2023 and the appellants as well as their
lessees were directed to be impleaded as defendants in the suit. Pursuant to
the order passed by this Court, the present appellants and their lessees were
added as defendant Nos. 4 to 7 in the civil suit, however, without any
amendment in the pleadings.
11. After impleadment of the present appellants, notices were issued and
as the appellants were settled in USA, the notice was deemed to be served on
his father in the month of October, 2023.
12. The case was then listed before the trial court on 27.10.2023, on which
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
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date one counsel Mr. B.M. Bishnoi appeared for the appellants on memo of
appearance and prayed for time to file Vakaalatnaama and written statement,
thus, the case was listed on 03.11.2023. On 03.11.2023, the said counsel
again appeared and again sought time for the same reason. Thus, the case was
adjourned for 06.11.2023 and on 06.11.2023, the said counsel did not appear.
Thus, the court proceeded ex-parte against the present appellants and
defendant Nos.6 and 7. The next date was accordingly fixed for 23.11.2023
for final arguments.
13. As the proceedings would reflect, out of 7 defendants, defendant
No.1, 3 and 4 to 7 were proceeded ex-parte and only respondent No.1 filed
his written statement.
14. On 23.11.2023, the plaintiffs (respondent Nos.1 and 2) instead of
advancing their final arguments filed an application under Order 6 Rule 17
of CPC thereby not only amending pleadings but also adding reliefs of
declaration of sale deed executed in favour of appellants to be declared null
and void and consequently, lease deed executed by the appellants in favour
of respondent Nos.6 and 7 also as null and void.
15. The trial court vide order dated 23.11.2023 allowed the above said
amendment in plaint, however, no notice of this amendment was issued to
any of the six ex-parte defendants in the proceedings and after allowing the
amendment final arguments were heard and on 29.01.2024, ex-parte
judgment and decree was passed thereby sale deed executed in favour of the
present appellants by the defendant Nos.1 to 3 (respondent Nos.3 to 5 herein)
was declared as null and void and the said defendants were directed to
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
NEUTRAL CITATION NO. 2026:MPHC-IND:4705
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execute sale deed in favour of the plaintiffs.
Case of the Appellants in present appeal:
16. The appellants in the present appeal have pleaded that the father of the
appellant No.1 and father-in-law of appellant No.2 namely Nemichand Maru
received a WhatsApp message from defendant Rajkumar Madan on
01.02.2024 thereby informing him about the judgment passed in the civil suit
thereafter on 05/06-02-2026 their father Nemichand Maru made a WhatsApp
call to the appellant No.1 thereby informing him about the impugned
judgment decree.
17. As the appellants live permanently in USA as permanent residents,
they executed power-of-attorney on 05.02.2024 at San Diego, CA, USA
thereby appointing Nemichand Maru, father of appellant No.1 as general
power of attorney, the same was received by him on 11.02.2024 through
courier. On 12.02.2024 on the instructions of Nemichand Maru, the entire
record of the civil suit was obtained by Advocate, Shri Athar Ali and
certified copy of the impugned judgment and decree was obtained on
16.02.2024, thus, this appeal came to be filed.
18. The contention of the learned senior counsel for the appellants is that
they are being bonafide purchasers can raise all defences which were
available to the original defendants under the law. He submits that the trial
court committed an error in holding that plaintiffs were ready and willing toperform their part of contract without appreciating that the plaintiffs sent a
letter on 12.05.2006 (Ex.P-8) just 3 days before the deadline of 15.06.2006
for the payment of first installment. It has further been stated that theSignature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
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correspondence between the plaintiffs and the original defendants would
show that in fact the plaintiffs were not having readiness to perform their part
of contract. It has further been argued that the sale-deed dated 29.03.2010
executed in favour of the appellants was never brought on record, however,
trial court declared the same as void under Section 52 of the Transfer of
Property Act contrary to Sections 32 and 34 of The Specific Relief Act,
1963.
19. It has further been contended that the trial court erred in considering the
amended Section 16 of the Specific Relief Act in para 18 of the judgment
which is not retrospective as the amendment was effected in the year 2018
and the transaction in the present case related to year 2006 onwards. It has
also been argued that the trial court committed error in law in decreeing the
suit for specific performance in spite of holding in para 14 to 17 of the
judgment that there is a defect in title of the suit property to the extent of
2000 Sq. Fts. without appreciating Section 17 of the Specific Relief Act,
which in fact, renders the contract unenforceable in case of defect in title.
20. The counsel for the appellant further argued that the trial court erred in
proceeding ex-parte against the appellants even after extensive substantive
amendment carried out by the plaintiffs/respondent Nos.1 and 2 in para 6 (a)
and 7(c) to 7(e), 11(c),(d),(e) in the plaint thereby specifically adding
pleadings and substantive reliefs against the present appellants. He submits
that first of all the present appellants were proceeded ex-parte before
carrying out amendment and second of all the very order of proceeding ex-
parte against the appellant is not sustainable in the eyes of law.
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
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21. The learned senior counsel submits that for proceeding ex-parte against
the present appellants it was reasoned that notice of the case was stated to be
served on the appellants through their father on 21.10.2023. He submits that
on 21.10.2023, the appellants were not in India as they had already settled
permanently in USA in the year 2011 itself. Thus, in view of the provisions
of Order 5 of the Code of Civil Procedure, service on the father of the
appellants was not proper, as he was not residing with the appellants and also
even if service found to be correct still after proceeding ex-parte extensive
amendment was made in the pleadings and reliefs. Thus, the appellants were
required to be issued a fresh notice after substantial amendment in the
pleadings. He thus submits that on any count i.e. merits as well as on the
ground of proceedings ex-parte in breach of provisions of law, the impugned
judgment and decree are not sustainable.
22. Learned counsel for the appellant in support of his submissions has
placed reliance on the judgments passed by the Hon’ble Apex Court in the
following cases:-
(i) Ram Awadh (Dead) by LRs Vs. Achhaibar Dubey and another, 2000
(2) SCC, 428
(ii) Azhar Sultana Vs. B. Rajamani and others, 2009 (17) SCC, 27
(iii) Thomson Press (India) Limited Vs. Nanak Builders and Investors
Private Limited and others, 2013 (5) SCC, 397
(iv) U.N. Krishnamurthy (since deceased) through LRs Vs. A.M.
Krishnamurthy, 2022 SCC OnLine SC 840
(v) HPA International Vs. Bhagwandas Fatesh Chand Daswani and
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
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others, 2004 (6) SCC, 537
(vi) Koushik Mutually Aided Cooperative Housing Society Vs. Ameena
Begum and another, 2023 SCC OnLine SC 1662
(vii) Pemmada Prabhakar and others Vs. Youngmen‘s Vysya Association
and others, 2015 (5) SCC, 355
(viii) Mahesh Singh and others Vs. Sewaram and others, 2000 (1) MPLJ,
407
(ix) Katta Sujatha Reddy and another Vs. Siddamsetty Infra Projects
Private Limited and others, 2023 (1) SCC, 355
(x) Alagammal and others Vs. Ganesan and another, 2024 (3) SCC 232
(xi) Archana Kumar and another Vs. Purendu Prakash Mukherjee and
another, 2000(2) MPLJ, 491
(xii) Mohammad Yakub Niyaji Vs. Shahi Zama Masjid Gwalior
Intazamia Committee, 2016 (3) MPLJ, 444
(xiii) Sumitra Bai and another Vs. Shyam Lal Sen and others, ILR [2009]
MP 495Respondent nos. 1 and 2’s reply:
23. The learned counsel for the respondent Nos.1 and 2/plaintiffs while
controverting the submissions of the learned senior counsel for the appellants
submits that the appellants are not the bonafide purchasers. The agreement to
sell with plaintiffs was executed on 10.04.2006 and for its specific
performance the suit was instituted on 21.11.2008 and sale-deed was
executed in favour of the present appellants on 29.03.2010 i.e. during
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
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pendency of the civil suit, thus, they cannot be said to be the bonafide
purchasers of the suit property, thus, they do not have any independent rights
and they could have argued whatever was available to the original
defendants. The trial court after considering the submissions of the original
defendants have decided the suits on merits, thus, the absence of the
appellant even if found improper then also it will not affect the impugned
judgment and decree. Thus, he submits that the suit deserves to be dismissed.
24. He further submits that the present appeal has been filed by the
appellants through their constituted general power of attorney – Shri
Nemichand Maru. The notice of the suit was served upon him on 21.10.2023
and counsel appeared on their behalf on 27.10.2023 and 03.11.2023,
however, he did not appear any further, thus the trial court has correctly
proceeded ex-parte against them. In support of his submissions, he places
reliance on the judgments of this Court in W.P. No.1469/2013 and W.P.
No.6584/2013.
25. He further submits that the appellants being purchasers during
pendency of the suit cannot be treated to be bonafide purchasers, thus, they
have no independent rights and for this proposition, he has placed reliance on
the judgment of the Hon’ble Apex Court passed in case of Alka Shrirang
Chavan and another Vs. Hemchandra RAjaram Bhonsale and others, SLC
(C) No.27660/2025, Maharajdeen Vs. President, Shri Ramkrishan Ashram
and others, MANU/MP/1311/2017 (WP No.1469/2013) and Sachiv Krishi
Upaj Mandi Samiti Sironj, Dist. Vidisha Vs. Ramkaran Singh Raghuvanshi,
(WP No.6584/2013), order dated 29.04.2025 (M.P. High Court, Gwalior
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
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Benhch). He thus submits that the appeal being bereft of merits deserves to
be dismissed.
26. The respondent Nos.6 and 7 have also appeared through counsel and
have supported the appeal by repeating the submissions advanced by the
learned counsel for the appellants.
Findings and conclusions:
27. Heard the learned counsel for the parties and perused the record.
28. There are essentially three issues involved in the present appeal, which
are as under:-
(i) whether the trial court has properly proceeded ex-parte against the
present appellants.
(ii) whether after amendment in the plaint, fresh notices were required to
be issued even to those defendants against whom the court had earlier
proceeded ex-parte.
(iii) whether the plaintiffs/respondent Nos.1 and 2 were able to
demonstrate their readiness for performing their part of contract in view of
the fact that the dispute relates to a period before the amendment in
provisions of The Specific Reliefs Act and wether this question can be raised
by the appellants.
Analysis and findings on issue No. (i) whether the trial court has properly
proceeded ex-parte against the present appellants:-
29. The sale-deed in favour of the present appellant was executed by the
original owners during pendency of the civil suit on 29.03.2010. In view of
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
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the same, the plaintiffs/respondent Nos.1 and 2 filed an application on
15.11.2021 under Order 1 Rule 10 of CPC for impleading them as
defendants in the civil suit. Not only this, the appellants, in turn, had
executed lease-deed in favour of respondent Nos.6 and 7, thus, they were
also sought to be impleaded by way of same application by the plaintiffs,
however, the trial court rejected the application vide its order dated
15.11.2021. Thus, the plaintiffs filed MP No.4409/2021 which was allowed
by this Court vide order dated 14.09.2023. Consequently, on 10.10.2023, the
present appellants were impleaded as defendant Nos.4 and 5 and the
respondent Nos.6 and 7 were impleaded as defendant Nos.6 and 7. The trial
court while impleading the above said defendants also directed the plaintiffs
to pay process fees for issuance of notice to the newly impleaded defendants
and the case was directed to be listed on 18.10.2023. On 18.10.2023, the
Court recorded in its order that notice returned with a note that “पाट एड नह ं
है ” . Thus, the Court directed for fresh process fees through SPS summons
and the matter was fixed for 27.10.2023.
” ीमान जी म शपथ पर रपोट िलखता हू ँ क िलखे पते पर
नो टसी क तलाश करते मौके पर नो टसी के पता हाजीर
िमले नो टस बकायदा दे खा व पढ़ा फर मौ खक जा हर करते
ह क नो टसी वदे श म है । फर अपनी वे छा से नो टस
नकल लेते ह, वह ं क तािमल नो टस ीमान जी क सेवा म
पेश है ।”
Thus, the process server observed in his note that the defendants were not
found on the given address and their father informed him that the noticees
are in foreign country. This endorsement of the process server was treated by
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
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the trial court as proper service. Order 5 Rule 15 of the Code of Civil
Procedure provides the circumstances under which service of notice can be
effected on an adult member of the defendant’s family. Order 5 Rule 15 of
CPC reads as under:-
“15. Where service may be on an adult member of defendant’s
family:– Where in any suit the defendant is absent from his
residence at the time when the service of summons is sought to be
effected on him at his residence and there is no likelihood of his
being found at the residence within a reasonable time and he has
no agent empowered to accept service of the summons on his
behalf, service may be made on any adult member of the family,
whether male or female, who is residing with him.”
30. It is, thus, clear that the requirement of law is that when the notice is
sought to be served at the residence of the defendants there must be no
likelihood of his being found at the resident within a reasonable time and he
has no agent empowered to accept service then the service may be effected
on any adult member of the family whether male or female who is residing
with him. Thus, the requirement is that the defendant should be living at the
said address and with him the person upon him service is effected must also
be residing. Here, in the present case, the endorsement itself says that the
appellants were living abroad. The arguments of the learned counsel for the
respondent Nos.1 and 2 that even present appeal is filed by their father, the
same person upon whom notice was served is of no avail for the reason that
even if it is seen that the father of appellant No.1 is power of attorney holder
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
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of both the appellants then also the date of service is very important. The
service was effected on 21.10.2023 whereas the father of the appellant was
constituted as general power of attorney on 05.02.2024 executed by the
appellant in San Diego, CA, USA and the same was received by him on
11.02.2024, thus, on the date when summon was served upon the father of
the appellant No.1 he was not a general power of attorney holder of the
appellant.
31. This Court in the case of Sumitrabai (supra) has held in para 8 as
under:-
“8 . Order 5, Rule 15, Civil Procedure Code provides that the
service may be effected on any adult member of the family who is
residing with the addressee. Words “who is residing with him” are
quite significant. An adult member of the family while being
served with the notice/summons must be residing with the
addressee. In the present case it is amply clear from the record that
Jaswant was residing separately whereas the appellants were
residing at village Banchhod independently. Process Server, on not
finding Sumitra Bai at her residence mentioned in the notice went
to District Raisen at the residence of her son Jaswant and served
upon him the notice. Thus, Jaswant is found to have resided
separately and not with Sumitra Bai at the time of service of
notice. Process Server was not empowered under Order 5, Rule
15, Civil Procedure Code to serve the notice of Sumitra Bai even
on her major son who was not residing with her. In view of this,Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
Signing time: 3/31/2026
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compliance of Rule 15 does not appear to have been made while
effecting service of the notices meant for appellants. This being so,
the service of notice on Jaswant was not liable to be taken into
consideration as service on appellants. Thus, the service on
Jaswant is found to be invalid within the meaning of Order 5, Rule
15, Civil Procedure Code. It is further found that in view of
absence of service on appellants, there was sufficient cause for
their absence at the time of proceedings against them in exparte
manner.
32. Again in the case of Moh. Yaqoob (supra), this Court while
considering the similar question has held in para 13 to 16 and 19 as under:-
“13. The trial Court as well as the first appellate Court had
proceeded on an assumption that the summons have been received
by a girl named as Saira, who happens to be a family member of
the petitioner/defendant, therefore, service of summons was
effected properly and on proper person, but in the light of the fact
that Saira is not a family member of petitioner, as contended by
the petitioner, the said assumption gets falsified.
14. The requirement under the law is contained under Rules 15,
16, 17 and 18 of Order V.
15. A perusal of Rule 15 would show that “where the defendant is
absent from his residence, when the summons are sought to be
served and there is no likelihood of his being found at the
residence, within a reasonable time the summons can be served on
an adult member of the family. The requirement of the law is that
there is no likelihood of his being found within a reasonable time
at his residence.
16. The endorsement on the summons does not read that the
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KUMAR RAIPURIA
Signing time: 3/31/2026
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Bailiff at any point of time ever made any enquiry from anybody
whether the defendant was available or not, whether there was any
likelihood of his availability within a reasonable time or whether
after sometime, the said defendant could be served. When the law
provides that the summons are to be served in a particular manner,
that has to be served in accordance with law. This compliance is to
be made and interpreted stringently because it involves the
valuable right of a litigant (as defendant) to contest the claims and
case of plaintiff.
19. The above discussion gains support from an earlier judgment
rendered by this Court in the matter of Lilabai w/o Kunjbihari Das
and Others v. Shri Triyogi Narayan as reported in 1997 (2) MPLJ
478. The plaintiff was required to establish the fact that summon
was duly served on the present petitioner/defendant in accordance
with legal provisions as contained in Order 5 of Civil Procedure
Code.”
33. It is thus clear that no proper notice was served upon the present
appellants pursuant to their impleadment as defendants Nos.4 and 5 in the
civil suit.
34. As regards the appearance of counsel on behalf of appellant, Mr. B.M.
Bishnoi, para 2 of the application filed by the appellants under Order 9 Rule
13 of CPC (annexure A/8-A) would be relevant to see in which the
appellants have stated before the trial court itself that they had never
instructed the said counsel to appear and he has appeared without their
knowledge. It is very suspicious that how a counsel appeared on two dates
i.e. 27.10.2023 and 03.11.2023 (which is wrongly mentioned in the order-
sheets as 03.10.2023) and on 06.11.2023 he did not turn up and thus, court
proceeded ex-parte. Thus, within a span of 9 days the Court in a hurried
Signature Not Verified
Signed by: NARENDRA
KUMAR RAIPURIA
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manner proceeded ex-parte against the present appellant. The said counsel
appeared on memo of appearance and never filed Vakaalatnaama on behalf
of present appellants.
35. It is also significant to note at this stage that except defendant No.2, all
other 6 respondents were proceeded ex-parte in the case before the trial
court. In view of the above analysis, this Court is of the considered view that
the trial court proceeded in a hasty manner without considering the fact that
first of all notice has not been served upon the present appellants/defendant
Nos.4 and 5 in accordance with the provisions of Order 5 Rule 15 of CPC in
particular and secondly, the counsel who appeared on memo of appearance
disappeared without filing Vakalatnama which should have raised an alarm
in the mind of the trial court, however, trial court in a casual manner
proceeded ex-parte in the matter.
Analysis on the question No.(ii) whether after amendment in the plaint,
fresh notices were required to be issued even to those defendants against
whom the court had earlier proceeded ex-parte:-
36. Whether after amendment in the plaint, defendants against whom the
trial court had proceeded ex-parte were required to be served or not, it has to
be seen in the light of the fact that what was the nature of the amendment in
the plaint. The plaint was amended by the respondent No.1 and 2/plaintiffs so
as to insert pleadings regarding sale-deeds executed by the original
owners/defendant Nos.1 to 3 in favour of the present appellants and by the
present appellants, lease deed in favour of the respondent Nos.6 and 7. Not
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only pleadings but relief of declaring those deeds as null and void was also
inserted by way of amendment, as such, by no stretch of imagination it can
be said to be a formal amendment it was a substantive amendment seeking
relief directly against the present appellants. This has to be seen also in view
of the fact that out of the three original defendants, two were already ex-
parte and only Jagdish – the defendant No.2 had filed his written statement.
37. This Court in the case of Mahesh Singh (supra) while considering
similar facts has held in para 9 as under:-
“9. Having considered the rival contentions advanced by the
parties and having gone through the record, it is borne out from
the record that though the counsel pleaded no instructions on 10-
11-1986, but the notices were not issued to the parties. In view of
the decisions reported in 1993 Supp (3) SCC 256 : AIR 1993 SC
1182 Tahil Ram Issardas Sadarangani v. Ramchand Issardas
Sadarangani and (1998) 2 SCC 206, Malkiat Singh v. Joginder
Page: 411Singh and in view of the facts and circumstances of the
case discussed elaborately in earlier paras especially that of 3 to 6,
in the opinion of this Court, the appellants deserve opportunity to
contest the suit, on merits in the ends of justice. It is specifically
so as the respondents/plaintiffs filed the application on 24-11-1990
changing cause of action from 28-8-1984 to 28-8-1974, which was
allowed without notice to the other side. It is pertinent to mention
here that where defendant is absent, no amendment should be
allowed as has been done in this case. In view of the decisionSignature Not Verified
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reported in 1946 NLJ 81 : AIR (33) 1946 Nagpur 60 , Ganesh
Prasad Ram Prasad v. Damayanti w/o Ganesh Prasad , the Court
ought to have issued notice, before allowing amendment. In view
of the discussion aforesaid, the first substantial question of law is
answered in favour of the appellants and the ex parte judgment
and decree passed are set aside.”
38. As such, after permitting substantive amendment in the pleadings
and substantive addition in relief against the defendants against whom court
was proceeding ex-parte, it was incumbent upon the trial court to issue fresh
notice even to those defendants against whom it had proceeded ex-
parte. This Court in view of the judgment in the case of Mahesh Singh
(supra) as well as judgments passed by the Hon’ble Apex Court and by the
Division Bench of Patna High Court while considering this issue in the case
of Chairman, M.S. Banga Hindustan Lever Ltd. v. Heera Agencies, 2018 (2)
MPLJ, 43 : 2017 SCC OnLine MP 1966 has held in para 22 to 29 as under:-
22. The parties are also at loggerheads on the decision taken on
applications filed under Order 9, Rule 13, Civil Procedure Code. The
learned counsel for the appellants placed reliance on certain judgments to
bolster his submission that if amendment applications and application to
take documents on record are filed and allowed subsequently, the decision
to proceed ex parte i.e. 15-9-2004, the Court below should have issued
fresh notices to the appellants. This point requires serious consideration.
23. Justice Vivian Bose speaking for three Judges Special Bench
in Ganesh Prasad Ramprasad (supra) opined as under:
” That apart. Even if this had been an ordinary civil case resting
on a plaint, no relief could have been given on averments
essential to the claim which were not included in the plaint
unless amendment were allowed; and it is patent that no
amendment would be allowed without fresh notices to he other
side. Parties are entitled to assume that matters will be litigatedSignature Not Verified
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on the strength of the averments contained in the petition of
plaint and that fresh statements of fact material to the issue not
be introduced without affording the other side an opportunity
of meeting, and if need be contesting the new face.”
[Emphasis Supplied]
24. The Division Bench of Patna High Court in the case of Jharkhand
Mines and Industries Ltd. (supra) held as under:
“The Code of Civil Procedure, in my opinion, casts a
duty on the Court to see that the defendants are made
aware of any amendment in the plaint, whether the
amendment be in regard to the addition of parties or in
regard to the contents thereof. Unfortunately, the
learned Subordinate Judge, who passed the ex parte
decree, did not direct any notices to be issued to the
defendants with a view to make them aware about the
amendment of the plaint. He should have issued such
notices and awaited the service report, and, if the
defendants so desired, granted them an opportunity to
file a written statement before putting up the suit for
hearing and disposal, whether ex parte or otherwise. On
this ground alone, I am of the opinion that the ex parte
decree is vitiated and must be set aside.”
[Emphasis Supplied]
25. The Apex Court in (2004) 1 SCC 497 : AIR 2004 SC 1084, Ramnik
Vallabhdas Madhvani v. Taraben Pravinlal Madhvani , poignantly held as
under:
“On amendment of pleadings being allowed, the
opposite party has to be given a chance to respond to
the amended pleading and if the plea is contested the
Court has to give its decision thereon. Not affording an
opportunity to the contesting party to contest a plea,
which has been allowed to be amended, is negation of
justice.”
26. Similarly, in 1993 Supp (3) SCC 256 : AIR 1993 SC 1182, Tahil Ram
Issardas Sadarangani v. Ramchand Issardas Sadarangani, the Apex Court
held that in cases of withdrawal of power of Advocate when client is
present and not aware of the date of hearing, dismissal of petition for want
of prosecution is improper.
27. Justice Fakhruddin in the case of Mahesh Singh (supra) followed the
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principles laid down in the case of Ganesh Prasad Ramprasad (supra) and
opined as under:
” 9. Having considered the rival contentions advanced by the
parties and having gone through the record, it is borne out
from the record that though the counsel pleaded no
instructions on 10-11-1986, but the notices were not issued to
the parties. In view of the decisions reported in 1993 Supp (3)
SCC 256 : AIR 1993 SC 1182 , Tahil Ram Issardas
Sadarangani v. Ramchand Issardas Sadarangani and (1998) 2
SCC 206, Malkiat Singh v. Joginder Singh and in view of the
facts and circumstances of the case discussed elaborately in
earlier paras especially that of 3 to 6, in the opinion of this
Court, the appellants deserve opportunity to contest the suit, on
merits in the ends of justice. It is specifically so as the
respondents/plaintijfs filed the application on 24-11-1990
changing cause of action from 28-8-1984 to 28-8-1974, which
was allowed without notice to the other side. It is pertinent to
mention here that where defendant is absent, no amendment
should be allowed as has been done in this case. In view of the
decision reported in 1946 NLJ 81 : AIR (33) 1946 Nagpur 60 ,
Ganesh Prasad Ram Prasad v.Damayanti w/o Ganesh
Prasad, the Court ought to have issued notice, before allowing
amendment. In view of the discussion aforesaid, the first
substantial question of law is answered in favour of the
appellants and the ex parte judgment and decree passed are set
aside.
[Emphasis Supplied]
28. To counter, the said argument of learned counsel for the appellants that
the stand of Mr. Fakhruddin was that although amendment application and
application to take documents on record were allowed subsequently to the
date of proceedings ex parte, the said applications were formal in nature.
29. Suffice it to say, that the Division Bench of Patna High Court in no
uncertain terms held that a duty is cast on the Court to ensure that the
defendants are made aware of any amendment in the plaint. In the
considered opinion of this Court, only after receiving the copy of
amendment application and application to take documents on record, the
other party can examine and decide whether they need to contest the suit
in view of amendment proposed and documents proposed to be filed.
Thus, I find substance in the argument of appellants that common
string/principles in the said judgments is that the Court below should put
the other side to notice before putting the suit for hearing and disposal. ForSignature Not Verified
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this reason alone, in my judgment, the impugned orders dated 9-4-2009
and 22-1-2009 cannot sustain judicial scrutiny.
39. As regards the reliance placed by the learned counsel for the
respondents on the judgment in the case of Sachiv, Krushi Upaj Mandi
(supra), the facts of the said case were different. In the said case, the court
found that though stay on the proceedings under Section 33 (c)(2) of the
Industrial Dispute Act was obtained by the petitioner, however, the petition
was dismissed by a bi-party order after it was duly argued by the learned
counsel for the petitioner. As such, petitioner was aware of the fact that his
petition has been dismissed, thus, the interim order has also come to an end.
In these facts, the Court found that fresh notice was not necessary, however,
the facts of the present case are totally different. Similarly, in the case
of Maharajudeen (supra), the court specifically held in para 23 as under:-
“23. In the present case, amendment application has been filed
not for change of cause of action and the plaintiffs are claiming
possession over survey No. 29 only and judgment and decree has
been passed in respect of survey No. 29 only. Hence, the judgment
relied upon is again of no help.”
40. As such, cause of action was not changed, however, the cause of
action in the case was regarding possession. In the present case, it is not
about only cause of action but also the relief sought and the relief sought is
of cancellation of sale-deed executed in favour of appellant by way of
amendment. This is the relief sought directly against the present appellant as
such the facts of the said case are also distinguishable.
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41. In the considered view of this Court, the law as laid down by this Court
in the case of Mahesh Singh (supra), would apply squarely. As such, once a
substantive amendment in the pleading was made it is incumbent upon the
trial court to issue fresh notices to all those defendants against whom it has
earlier proceeded ex-parte.
Question No. (iii) whether the plaintiffs/respondent Nos.1 and 2 were able
to demonstrate their readiness for performing their part of contract in view of
the fact that the dispute relates to a period before the amendment in
provisions of The Specific Reliefs Act and whether this question can be
raised by the appellants:-
42. This issue has to be considered in view of the fact that first two issues
have been decided against the respondent Nos.1 and 2/plaintiff.
Consideration has also to be made in view of the fact that out of total 7
defendants, 6 were proceeded ex-parte. Now, the case of the defendants since
beginning i.e. from the date of issuance of first notice on 12.05.2006 is that
the said notice was issued by the plaintiffs so as to avoid payment of
instalment of Rs.19 Lacs on 15.05.2006, thus, since beginning their case was
that the plaintiffs were not ready to pay and it is not only willingness but also
readiness which has to be demonstrate.
43. The trial court found that the readiness has to be shown only on
demand by the court or by the defendants, however, it completely ignored
the requirement under the law and the evidence which was brought on record
which imputed that the respondent Nos.1 and 2/plaintiffs were never ready to
perform their part of contract. The Trial Court has reproduced the amended
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section 16 of the Specific Relief Act however the said amended was carried
out in the year of 2018 whereas the transaction is of the period before that.
As such the case has to be looked into as per the unamended provisions of
section 16 of the Specific Relief Act.
44. The reference made to the judgment of the Hon’ble Apex Court in the
case of Bassavraj Vs. Padmadevi AIR 2023 SC 282, is also misplaced for the
reason that in the said case the defendants never disputed the availability of
funds, there was no cross examination on that point in the said case.
45. This is settled position of law that the court cannot grant specific
performance to a plaintiff who has not met requirements of clause (a), (b) &
(c) of section 16 of the Specific Relief Act. The Hon’ble Apex Court in the
case of Ram Awadh (supra) has held in para 6 as under:-
“6. The obligation imposed by Section 16 is upon the court not
to grant specific performance to a plaintiff who has not met the
requirements of clauses (a), (b) and (c) thereof. A court may not,
therefore, grant to a plaintiff who has failed to aver and to prove
that he has performed or has always been ready and willing to
perform his part of the agreement the specific performance
whereof he seeks. There is, therefore, no question of the plea
being available to one defendant and not to another. It is open to
any defendant to contend and establish that he mandatory
requirement of Section 16(c) has not been complied with and it is
for the court to determine whether it has or has not been complied
with and, depending upon its conclusion, decree or decline toSignature Not Verified
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decree the suit. We are of the view that the decision in Jugraj
Singh case (1995) 2 SCC 31 is erroneous.”
46. As to the fact that whether present appellants can raise this issue.
In the case of Azhar Sultana (supra), the Hon’ble Apex Court in para 30 has
held as under:-
“30. It is also a well settled principle of law that not only the
original vendor but also a subsequent purchaser would be entitled
to raise a contention that the plaintiff was not ready and willing to
perform his part of contract. [See Ram Awadh (Dead) by LRs. &
Ors. v. Achhaibar Dubey & Anr. [(2000) 2 SCC 428 para 6]”
47. As such, it is not only the original vendor but also a subsequent
purchaser who would be entitled to raise a contention that the plaintiff was
not ready and willing to perform his part of contract. In the present case,
even the original vendor in his reply to the notices sent by the plaintiff stated
thus. As such, it is a case where the Court should have considered the aspect
of readiness of the plaintiffs also which it has completely ignored. In view of
the settled position of law even the subsequent purchaser is also entitled to
raise all the pleas.
48. The parties have raised several other arguments on merits, however,
this Court refrains from dwelling any further on those issues, including the
issue of readiness, for the reason that in view of the decisions on first two
issues, this Court is inclined to remand the case back to the trial court for
fresh adjudication after permitting the appellants to file written statement and
after recording their evidence thereon. As such the appeal stands allowed in
terms of the above findings. The matter is remanded back to the trial court
for fresh adjudication after granting an opportunity to the present appellants
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to file written statement and lead evidence, the plaintiffs can also lead
evidence on the issues of bonafide purchaser and thereafter fresh judgment
and decree be passed by the trial court.
49. Before parting with the case it is thought apposite to make it clear that
in view of the remand of the matter as per above analysis, this court has not
decided issues raised on merits of the suit in as much as whether the
readiness was demonstrated or not and whether the present appellants were
the bonafide purchaser or not and other similar issues. The trial court has to
decide the same in accordance with law.
50. It is also taken note of that although an application under Order 9 Rule
13 has been filed by the present appellant but the same was pending
consideration, thus, the issue regarding service has also been decided in the
present appeal as in view of the settled position of law simultaneous
proceedings of Order 9 Rule 13 and the first appeal under Section 96 can be
maintained.
(PAVAN KUMAR DWIVEDI)
JUDGE
N.R.
Signature Not Verified
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KUMAR RAIPURIA
Signing time: 3/31/2026
7:51:59 PM
