Bombay High Court
SMT. VANITA VIJAY BIRMAL AND ANR.versusSHRI. SAWALARAM ANANDA KAMBLE (MAHAR) AND ORS.
- Decided
- Disposal
- Disposed Off
Holding
The ex‑parte decree dated 28 February 2011 is set aside and the suit is restored.
Summary
The petitioners challenged the dismissal of their application to set aside an ex‑parte decree dated 28 February 2011 in a partition suit. They pleaded that the non‑appearance was due to the amputation of one petitioner's leg in 2008 and the death of his father on 12 January 2011. The trial court ignored the death of the father and dismissed the application, a decision affirmed by the appellate court, which erroneously treated the death as having occurred three years earlier. The High Court held that the combined medical condition and recent death constituted sufficient cause under Order IX Rule 13 of the CPC to set aside the decree. Consequently, the orders of the trial and appellate courts were set aside, the application was allowed, the suit was restored, and the petitioners were ordered to pay costs of Rs.50,000 each to the original plaintiffs. The Court also directed the trial court to expedite the suit and barred unnecessary adjournments. The writ petition was therefore allowed and disposed of with costs.
Issues considered
- Whether the petitioners' medical condition and the death of a close relative constitute sufficient cause to set aside an ex‑parte decree under Order IX Rule 13 of the CPC.
- Whether the trial and appellate courts erred in dismissing the application for condonation of delay and setting aside the decree.
- Whether costs should be awarded to the original plaintiffs upon restoration of the suit.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order IX Rule 13
Subjects
- ex‑parte decree
- condonation of delay
- Order IX Rule 13
- Civil Procedure Code
- setting aside decree
- costs
- suit restoration
- partition suit
Judgment
2026:BHC-AS:39782
Megha 23_wp_12363_2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12363 OF 2017
WITH
INTERIM APPLICATION NO.1928 OF 2025
IN
WRIT PETITION NO.12363 OF 2017
Smt. Vanita Vijay Birmal and Anr. ...Petitioners
V/s.
Sawalaram Ananda Kamble (Mahar)
and Ors. ...Respondents
________________
Mr. Durpad S. Patil with Ms. Srushti Chalke for the Petitioners.
Mr. Prakash Mahadik for Respondent No.1.
Mr. Nachiket Khaladkar with Mr. Dinesh Nagarkar for legal heirs of
Respondent No.2.
________________
CORAM: SANDEEP V. MARNE, J.
DATED: 29 SEPTEMBER 2026.
P.C.:
1) Petition challenges order dated 10 October 2017 passed by the
District Judge-1, Baramati dismissing Misc. Civil Appeal No.42 of 2016
and confirming the order dated 16 April 2016 passed by the Civil Judge,
Senior Division, Baramati. By its order dated 16 April 2016 the Trial
Court has dismissed Civil Misc. Application No.48 of 2011 filed by the
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Petitioners under the provisions of Order IX Rule 13 of the Code of Civil
Procedure, 1908 (the Code) for setting aside ex-parte decree dated 28
February 2011 in Special Civil Suit No.43 of 2005.
2) I have heard Mr. Patil, the learned counsel appearing for the
Petitioners, Mr. Khaladkar, the learned counsel appearing for Respondent
No.2 and Mr. Mahadik, the learned counsel appearing for Respondent
No.1. I have considered the submissions canvassed by the learned
counsel appearing for the parties.
3) It must be observed at the very outset that this is a second round
of litigation before this Court concerning the issue of setting aside ex-
parte decree dated 28 February 2011. Earlier the decree was set aside by
allowing Civil Misc. Application No.48 of 2011 and the Suit was restored
by order dated 3 October 2013/ 2 December 2013. However, Respondent
Nos.1 and 2 /original Plaintiffs filed Writ Petition No.6615 of 2014
complaining that the Trial Court decided the application for condonation
of delay as well as application for setting aside ex-parte decree by a
composite decree. Therefore this Court confined the order dated 3
October 2013/ 2 December 2013 only to delay condonation aspect and
directed the Trial Court to decide Civil Misc. Application No.48 of 2011
afresh on merits. This time, the Trial Court took a different view than the
one earlier taken and held that the Petitioners failed to show reasonable
cause for their absence when ex-parte decree was passed. Accordingly, by
impugned order dated 16 April 2016, Civil Misc. Application No.48 of
2011 is dismissed. The Appellate Court has confirmed the Trial Court’s
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order dated 16 April 2016 by dismissing Misc. Civil Appeal No.42 of 2016
by judgment and order dated 10 October 2017.
4) Perusal of the pleadings in Civil Misc. Application No.48 of 2011
would indicate that the Petitioners had pleaded inter-alia the grounds of
medical problems faced by Petitioner No.2 on account amputation of his
leg in the year 2008 as well as death of father of Petitioner No.2 (who was
father-in-law of Petitioner No.1) on 12 January 2011 as the main grounds
for justifying non-appearance before the Court when ‘no cross’ order was
passed on 21 February 2011 and when ex-parte decree was passed on 28
February 2011. It would be apt to reproduce pleadings in paragraph 4 of
Civil Misc. Application No.48 of 2011, which read thus:-
(4) Despite of the father of the applicant No. 2 / father in law of
applicant No. 1 due his illness and old age physical problems and
trubles in the month of January 2011 on 12/4/2011 expired in the
Pune. As if the death of the father of applicant No. 2 the applicant
No. 2 though he himself, physically is disabled he was required to
perform every rituals as per custom and religion as a son. Therefore
the applicants in the period of last three to four months period could
not make contact with their advocate as such they were not having
any knowledge about the stage and date of the suit proceeding.
However just before fifteen days Back the advocate of these
applicants informed them that as he has been attended the civil
Court Baramati in in the inquiry inquiry made by him he became to
learn that when he having made inquiry in the court C.J.S.D.
Baramati Shri Rathod Saheb it has been transpired to him their civil
suit was transferred to other C.J.S.D. Baramati Shri Jagdale Saheb and
in pursuance thereof when they themselves and their advocate found
absent at that time Plaintiffs led their evidence and without following
of due procedural law get the suit ex-parte decreed.
5) It appears that in the earlier order dated 3 October 2013/ 2
December 2013, the Trial Court had accepted both the grounds as a
reasonable cause for non-appearance of the Petitioners and for setting
aside the ex-parte decree. However, since this Court restricted order
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dated 3 October 2013 only to the aspect of delay condonation and
directed readjudication of Civil Misc. Application No.48 of 2011, the Trial
Court has passed fresh order on the Application on 16 April 2016.
6) Perusal of order dated 16 April 2016 passed by the Trial Court
would indicate that it has totally ignored aspect of death of father of
Petitioner No.2, which was one of the main grounds pleaded in Civil
Misc. Application. The Trial Court took into consideration only the
ground of medical condition of Petitioner No.2, whose leg has been
amputated in the year 2008. In the entire order dated 16 April 2016,
there is absolutely no consideration to the factum of death of father of
Petitioner No.2 on 12 January 2011.
7) When the order dated 16 April 2016 passed by the Trial Court was
carried in appeal before the Appellate Court, attention of the Appellate
Court was specifically invited to the factum of death of father of
Petitioner No.2. However, the Appellate Court has recorded a finding in
paragraph 16 of its judgment that the death of father of Petitioner No.2
might have occurred three years ago. Relevant findings recorded by the
Appellate Court in paragraph 16 of its judgment read thus:-
16) To accept request made by the appellants, it need to be seen
whether the reasons put-forth are sufficient. Evidence on the record
shows, in the year 2008 appellant No. 2 was ill by the ailment relating
to the leg, his leg was amputated. Same time, evidence came on the
record shows, it was matter of two three months and not more than
that. Evidence shows, judgment is delivered in the year 2011, so
reason shown appears not sufficient for not attending matter for such
a long period, especially when it is not proved in fact, appellant No. 2
was bed ridden from the year 2008 to 2011 and appellant No. 1
because of it could not pursue the matter. On the contrary, evidence
came on the record indicates, during aforesaid period appellants did
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their routine work (barring 2 to 3 months of illness of the appellant
No.2). Apart from that, it was just possible for the appellants to
contact their Advocate and to obtain information. Explanation is not
on record as to why such step was not taken. So far as the death of
father of appellant No. 1 is concerned, some period might have gone
but not three years. Medical evidence on the record also do not
support to the grounds put-forth by the appellants. Further facts
came on the record show, even after getting information of disposal
of the suit, appellants did not take further steps showing alertness.
(Emphasis added)
8) In my view, findings recorded by the Appellate Court in paragraph
16 of its judgment are perverse to the core. The factual position is that
father of Petitioner No.2 passed away on 12 January 2011 i.e. just about a
month before ‘no cross’ order was passed and the Suit was decreed ex-
parte. However, the appellate court has proceeded on the footing as if the
death had occurred 3 years ago. It appears that the Appellate Court
conflated the causes of medical condition of Petitioner No.2 (pertaining
to the year 2008) with death of his father (occurring on 12 January 2011)
and erroneously assumed that both events occurred in 2008.
9) In my view, therefore, both Trial as well as the Appellate Courts
have not properly applied their minds to the reasons pleaded and
demonstrated for setting aside the ex-parte decree.
10) Even otherwise, if the entire chronology of events is appreciated,
in my view, a perfect case was made out by the Petitioners for setting
aside ex-parte decree. No doubt, the Suit for partition (117 of 1995)
converted into Regular Civil Suit No.43 of 2005 was lodged on 19 July
1995. However, thereafter several amendments have been carried out in
the Plaint by the Plaintiffs. It appears that some portion of the suit
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property is purchased by the Petitioners by Sale Deeds dated 26 March
1996 and 30 September 1996. The Plaintiffs were bit late in raising
challenge to the said Sale Deeds and they were allowed to amend the
Plaint on 17 July 2010 to incorporate challenge to the Sale Deeds
executed in favour of the Petitioners. The Suit was thereafter transferred
to Civil Judge, Junior Division, Daund and was again re-transferred to
Civil Judge, Senior Division in the year 2005. On 10 February 2011 the
Plaintiffs filed application seeking amendment of the Plaint, which was
allowed and the area of suit property was allowed to be modified from 7
acres 7 Gunthas to 8 acres 25 Gunthas. Shortly before allowing
application for amendment on 10 February 2011, father of Petitioner
No.2 passed away on 12 January 2011. On 17 February 2011, the Plaintiff
submitted amended copy of the Plaint as well as filed their evidence. The
next date fixed for conduct of cross-examination was on 21 February
2011. This is the date on which Petitioners defaulted in making
appearance before the Trial Court and invited an order of ‘no cross’. Suit
was thereafter immediately decreed on 28 February 2011.
11) Considering the above chronology of events, it cannot be
contended, by any stretch of imagination, that the Petitioners are
responsible for delay in decision of the Suit. The Suit might have been
pending since the year 1995. The issue that ought to have been
considered by the Trial and the Appellate Courts was whether the
Petitioners had made out sufficient cause for non-appearance on 21
February 2011 and 28 February 2011. In my view, death of father of
Petitioner No.2 coupled with his medical condition, who had undergone
amputation of his leg, presented a sufficient cause for setting aside ex-
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parte decree dated 28 February 2011. Therefore, orders passed by the
Trial and the Appellate Courts are clearly unsustainable and liable to be
set aside. At the same time, it must be borne in mind that the Plaintiffs’
Suit is pending since the year 1995. Petitioners are subsequent
purchasers of portion of the suit property in the year 1996. At their
instance, the Suit is being restored after 16 long years. The Plaintiffs are
deprived of fruits of the decree dated 28 February 2011. Though
Petitioners made out some cause for remaining absent before the Trial
Court on 28 February 2011, they need to compensate the Plaintiffs for
their negligent acts. In my view, considering the facts and circumstances
of the case, it would be appropriate to award costs of Rs.50,000/- each to
be paid to Respondent Nos.1 and 2, who are original Plaintiffs in the
Suit.
12) In view of the above discussion, Petition succeeds and I proceed
to pass the following order:-
(i) Order dated 16 April 2016 passed by the Civil Judge,
Senior Division, Baramati in Civil Misc. Application
No.48 of 2011 and judgment and order dated 10
October 2017 passed by the District Judge-1, Baramati
in Misc. Civil Appeal No.42 of 2016 are set aside.
(ii) Civil Misc. Application No.48 of 2011 is allowed and
Special Civil Suit No.43 of 2005 is restored on the file of
the Civil Judge, Senior Division, Baramati.
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(iii) The Petitioners shall pay to Respondent Nos.1 and 2
costs of Rs.50,000/-each. The amount of costs shall be
deposited by the Petitioners before the Trial Court
within a period of four weeks with liberty to
Respondent Nos.1 and 2 to withdraw the same. Deposit
of costs shall be condition precedent for restoration of
the Suit.
(iv) Considering the fact that the Suit is pending since the
year 1995, the Trial Court shall accord due priority for
its expeditious disposal and shall make an endeavour to
decide the Suit as expeditiously as possible, preferably
within a period of one year.
(v) The Petitioners/Respondents shall not seek
unnecessary adjournments before the Trial Court.
13) With the above directions, the Writ Petition is allowed and
disposed of with costs as directed above.
14) With the disposal of the Writ Petition, nothing survives in the
Interim Application and the same is accordingly disposed of.
[SANDEEP V. MARNE, J.]
Signed by: Megha S. Parab
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Designation: PA To Honourable Judge 29 September 2026
Date: 30/09/2026 14:54:15
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