RAGHVENDRA PANDEY Vs. SMT. NEELIMA AJAY MISHRA

JUDGEMENT

(1.) Challenge in this appeal is to the order dtd. 21/12/2021 passed by the 8thAdditional District Judge, Raipur, in Civil Suit No.27A/2019, whereby an ex-parte decree for possession and partition was allowed. The plaintiff/respondent filed a suit for partition and the pleading show the claims were routed through a WILL in the initial plaint. The plaintiff claimed for 1/3rd share in respect of the suit property and possession was also claimed for. After notice the order-sheet of the Court below would show that time was sought for to file written statement by the appellant and eventually on 27/11/2019 since no appearance was made they were proceeded ex-parte. Subsequent, thereto the plaintiff/respondent amended the plaint and instead of 1/3rd share, half of the share was claimed and further money claim was also made. The said amendment was allowed and accordingly the prayer was amended. Subsequent to first amendment another amendment was also incorporated. So both the substantial amendments were carried out while the defendant appellant was ex-parte. Thereafter, the ex-parte judgment and decree was passed.

(2.) Learned counsel for the appellant would submit that when substantial amendment to the pleading and prayer was made, irrespective of the fact that earlier they were proceeded ex-parte, the appellant was required to be noticed again. He refers to the amendment application and the original prayer made in the plaint to show that substantial change including the change of claim to portion of share was made. Therefore, the defendant/appellant herein was not aware of those facts which would defeat the very right to defend such claim and will lead to bypassing the rules of natural justice. He placed his reliance in the case of Ramnik Vallabhdas Madhvani and others Vs. Taraben Pravinlal Madhvani {(2004) 1 SCC 497} and further would submit that an application has already been filed under Order 9 Rule 13 CPC before the learned trial Court which is pending but that pendency of the application would not create a bar of hearing the appeal by this Court. He further placed his reliance in the case of Bhanu Kumar Jain Vs. Archana Kumar and Another {(2005) 1 SCC 787} and further a recent judgment of G.N.R. Babu alias S.N. Babu Vs. Dr. B.C. Muthappa and others {2022 SCC OnLine SC 1158} and would submit that the appellant came to know about the ex-parte judgment and decree of 21/07/2022 though the decree was of 21/12/2021 and would submit that under these circumstances no substantial delay was caused. The counsel would submit that under the circumstances delay of 231 days in preferring the appeal may be condoned and the appeal may be allowed and suit be remanded to be adjudicated on its merits.

(3.) Per contra, learned counsel for the respondent would submit that the conduct of the appellant would be relevant for the reason that order-sheet demonstrates that despite sufficient opportunities granted, he did not file the written statement and after decree was passed, this appeal has been filed just to protract the trial and continue the litigation. He would further submit that the application under Order 9 Rule 13 CPC since is pending, separate appeal would not be maintainable and no sufficient reasons have been assigned to condone the delay, therefore, the appeal sans merit is liable to be dismissed.