Rajasthan High Court – Jaipur
M/S Tirupati Fab Oils And Chemicals vs Atul Jain Son Of Shri Late Shri Rajendra … on 31 July, 2025
Bench: Inderjeet Singh, Anand Sharma
[2025:RJ-JP:27537-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Miscellaneous Appeal No. 1852/2024
1. M/s Tirupati Fab Oils & Chemicals, A Partnership Firm
Through Partner, Office At A-19, Kamla Vihar, Chhitorgarh
Road, Bhilwara (Raj.).
2. Smt. Sonal Nawaka Wife Of Shri Sanjay Singh Nawaka,
Partner Firm M/s Tirupati Fab Oils & Chemicals, Resident
Of A-19, Kamla Vihar, Chhitorgarh Road, Bhilawara (Raj.).
3. Smt. Priya Gupta Wife Of Shri Vinil @ Vinit Gupta, Partner
Firm M/s Tirupati Fab Oils & Chemicals Resident Of A-19,
Kamla Vihar, Chhitorgarh Road, Bhilwara (Raj.).
----Appellants
Versus
Atul Jain Son Of Shri Late Shri Rajendra Kumar Jain, Aged About
52 Years, Proprietor M/s R.K. Steel, Makhupura Industrial Area,
Ajmer Resident Of Sangam Colony, Meyo Link Road, Ajmer.
----Respondent
For Appellant(s) : Mr. Sunil Tyagi
Mr. Anirudh Tyagi
Mr. Abhishek Sharma
Mr. Utkarsh Bhargav
Mr. Saurabh Vaishnav
For Respondent(s) : Mr. R.K. Daga with
Mr. Rahul Singh Chauhan
HON'BLE MR. JUSTICE INDERJEET SINGH
HON'BLE MR. JUSTICE ANAND SHARMA
Order
RESERVED ON :: 21.07.2025
PRONOUNCED ON :: 31.07.2025
(Per Hon. Anand Sharma, J.)
1. By way of filing the instant appeal under Order 43 Rule
1(d) of CPC, the appellants have challenged the order dated
05.03.2024 passed by the learned Commercial Court, Ajmer,
whereby, the application under Order 9 Rule 13 read with Section
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151 CPC filed by the appellants for setting aside the ex-parte
judgment and decree dated 02.12.2021, has been rejected.
2. Brief facts of the instant matter are that the
respondent/plaintiff filed one civil suit for recovery of
Rs.54,86,875/- against the defendants before the learned
Additional District & Session Judge No.1, Ajmer in the year 2014.
Summons were issued in the aforesaid suit to the defendants,
which were duly served upon them. On 19.08.2014, Advocates
has put in appearance on behalf of the defendants to represent
them. Written statement was filed on behalf of the defendants and
issues were also framed by the Additional District and Sessions
Judge No.1, Ajmer on 27.07.2016 and thereafter suit was posted
for plaintiff’s evidence.
3. The respondent/plaintiff submitted his evidence in the
form of affidavits on 09.09.2016. Thereupon, opportunity was
granted to the defendants for cross-examining the plaintiff’s
witness.
4. On 03.11.2016, instead of cross-examining the witness,
one application under Order 7 Rule 14 CPC was filed by the
defendants and thereafter the matter was prolonged for the
hearing of the aforesaid application. On 21.07.2018, another
application was filed by the plaintiff under Order 11 Rule 12 & 14
read with Section 151 CPC. Learned counsel for the defendants
continue to seek time for filing reply to such application on
09.08.2018, 14.09.2018, 25.10.2018 & 29.11.2018 and thereafter
on 17.01.2019, one another application under Order 22 Rule 4
CPC was filed.
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5. Perusal of record of the learned Court below would
reveal that on account of establishment of learned Commercial
Court, on 19.07.2019, the suit was transferred to the learned
Commercial Court, Ajmer, as the subject-matter of the suit was a
commercial dispute between the parties. Both the parties were
directed to remain present before the learned Commercial Court.
On 09.08.2019, the matter was placed before the learned
Commercial Court, where the defendants No.1 to 4 sought time to
file reply pursuant to order dated 05.12.2018 passed earlier on
application under Order 11 Rule 12 & 14 CPC.
6. Thereafter, the matter was delayed on behalf of
defendants for making compliance of earlier order dated
05.12.2018 and for that purpose time was sought on 28.08.2019,
25.09.2019, 11.10.2019, 23.10.2019, 20.11.2019, 11.12.2019,
18.12.2019 & 23.01.2020. The suit was again placed for plaintiff’s
evidence on 12.02.2020. During all these proceedings, counsel for
defendants admittedly remained present before the learned
Commercial Court.
7. Thereafter, on 12.02.2020 documents were exchanged
by parties and the matter was placed on 11.03.2020.
8. On account of out-burst of virus of Covid-19, in
accordance with guidelines issued by the Central Government as
well as by this Court, for some time the Courts were closed,
however, in order to provide justice to public at large, the
proceedings were thereafter conducted through video
conferencing/physical mode.
9. It is relevant to point out that on 02.07.2020, counsel
for both the parties were present before the learned Commercial
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Court. On 07.08.2020, nobody appeared before the learned Court
below and the matter was adjourned. Thereafter on 18.11.2020
counsel for the plaintiff was present, however, nobody was there
on behalf of the defendants.
10. On 15.01.2021, proxy counsel was present on behalf of
the defendants and matter was further posted on 17.02.2021 for
arguments on pending application.
11. On 17.02.2021 also, although counsel for the plaintiff
was present, yet nobody put in appearance on behalf of the
defendants.
12. Thereafter on 03.02.2021, counsel for the plaintiff as
well as defendant No.5 was present, yet nobody was present to
attend the proceedings on behalf of defendants No.1 to 4.
13. Further, the matter was taken up on 24.03.2021, where
again counsel for the plaintiff and defendant No.5 attended the
hearing, yet nobody was there for defendants No.1 to 4. Since for
last so many hearing dates, neither the defendants No.1 to 4 nor
their counsel appeared before the learned Court below, therefore,
ex-parte proceedings were drawn against the defendants No.1 to
4.
14. After drawing ex-parte proceedings on 24.03.2021, the
matter was listed before the learned Commercial Court on
16.04.2021, 22.07.2021, 02.08.2021, 31.08.2021, 18.08.2021,
27.08.2021, 10.09.2021, 28.09.2021, 05.10.2021, 11.11.2021,
17.11.2021 & 02.12.2021. Finally, ex-parte judgment and decree
was passed by the learned Court below against the defendants
No.1 to 4, after as many as 13 dates of hearing in between
drawing ex-parte proceedings and passing the final judgment and
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decree. In this process, the learned Court below has taken nine
long months.
15. As per record, a certified copy of the judgment dated
02.12.2021 was obtained by the appellants on 23.12.2021. After
obtaining a copy, on 07.03.2022 the appellants-defendants filed
an application under Order 9 Rule 13 read with Section 151 CPC
for setting aside ex-parte judgment and decree dated 02.12.2021.
16. Bare perusal of the application under Order 9 Rule 13
CPC would reveal that the reasons assigned by the appellants-
defendants for not attending the Court proceedings before the
learned Commercial Court were that although summons of the suit
in question were served upon the appellant-defendants and they
were also attending the proceedings earlier, yet on 03.03.2021,
nobody could appear on behalf of appellants-defendants and only
on account of such non-appearance ex-parte proceedings were
drawn against the appellants-defendants.
17. It has also been contended in the application by the
appellants-defendants that due to the fact that appellant-
defendant No.2 (Smt. Sonal Nawaka) was suffering from Covid-19
and was admitted in Geetanjali Medical College from 11.05.2021
to 22.06.2021 and other appellants-defendants were busy in her
medical care and treatment, during such Covid-19 period, they
could not contact their counsel, hence nobody could appear on
their behalf and ultimately on 23.12.2021, after obtaining certified
copy they could learn that ex-parte judgment and decree
02.12.2021 has been passed against them.
18. It was submitted by the appellants-defendants that
reasons for their non-appearance was totally bona fide, hence, the
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ex-parte judgment and decree dated 02.12.2021 may be set aside
and an opportunity may be granted to them to participate in the
proceedings on merits.
19. Reply to the application was also filed on behalf of
respondent-plaintiff, wherein he opposed the application by stating
that the learned Court below has passed ex-parte judgment and
decree dated 02.12.2021 after granting ample opportunities to the
appellants-defendants to appear before the learned Court below
and to defend the suit. However, the appellants-defendants have
been negligent and deliberately avoided the Court proceedings.
Application under Order 9 Rule 13 CPC is their another device to
delay the fruits of decree passed by the learned Court below.
Respondent-plaintiff prayed for rejecting the application.
20. After hearing learned counsel for both the parties the
learned Commercial Court dismissed the application under Order 9
Rule 13 read with Section 151 CPC filed by the appellants-
defendants vide order dated 05.03.2024.
21. Learned counsel for the appellants-defendants while
assailing the order dated 05.03.2024 would submit that the
learned Court below has utterly failed to appreciate that the
reasons for their non-appearance on 03.03.2021 and even
thereafter up till passing of ex-parte decree dated 02.12.2021 was
bonafide in nature.
22. Learned counsel for the appellants-defendants also
submits that the learned Court below has erred in rejecting the
application treating it to be allegedly delayed application, whereas
at the relevant time entire world was affected by the Covid-19
virus and looking at the intensity and fatality of the virus, the
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Hon’ble Supreme Court in the case of In Re: Cognizance for
Extension of limitation (Misc. Application No.21/2022 in Suo Motu
Writ Petition (C) No.3/2020) passed an order dated 10.01.2022,
wherein guidelines have been given by the Hon’ble Supreme Court
for excluding the period from 15.03.2020 till 28.02.2022 for the
purpose of limitation as may be prescribed under any general or
special laws in respect of all judicial or quasi judicial proceedings
and further, it was directed that in cases where limitation period
would have expired during the period between 15.03.2020 till
28.02.2022, notwithstanding the actual balance period of
limitation remaining, all persons shall have limitation period of 90
days from 01.03.2022. In the instant case, against ex-parte
judgment and decree dated 02.12.2021, the appellants-
defendants filed application for setting aside ex-parte judgment
and decree on 07.03.2022, therefore, in the light of aforesaid
order dated 10.01.2022 passed by the Apex Court, the application
filed by the appellants-defendants was well within limitation.
23. Learned counsel for the appellants-defendants also
vehemently argued that instead of adopting hyper technical
approach, the Courts ought to focus upon substantial justice and
both the parties should be given equal opportunity to present their
case. In the instant matter, on account of ex-parte judgment and
decree dated 02.12.2021, the appellants-defendants are facing
grave prejudice and miscarriage of justice and by not allowing the
application for setting aside ex-parte decree filed by the
appellants-defendants, the learned Court below has violated the
well-known principle of audi alteram partem, thus the order dated
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05.03.2024 passed by the learned Court below is totally
unreasonable and unjustified.
24. Learned counsel for the appellants-defendants would
also submit that they suffered on account of mistake of their
counsel and only on account of non-appearance of the counsel,
the party cannot be made to suffer. It was further submitted that
in case their counsel was not appearing, the learned Court below
ought to have issued fresh notices to the appellants-defendants
instead of deciding the suit ex-parte vide judgment and decree
dated 02.12.2021.
25. In order to support his contentions, learned counsel for
the appellants-defendants has relied upon following judgments. In
the case of Rafiq & Anr. Vs. Munshilal & Anr. reported in
(1981) 2 SCC 788, it was observed that for the mistake of
lawyer a party should not be put to disadvantageous position.
While citing the judgment of this Court in the case of Banshi
Dhar Vs. Chandra reported in 1987 SCC OnLine Raj 240, he
submitted that it was a duty of the counsel to inform his party
with regard to proceedings of the Court and when such
information was not given then the Court cannot remain a silent
spectator. He also referred the judgment of Tahil Ram Issardas
Sadarangani & Ors. Vs. Ramchandra Issardas Sadarangani
& Anr. reported in AIR 1993 SC 1182, Malkiat Singh & Anr.
Vs. Joginder Singh & Ors. reported in 1998 (2) SCC 206 to
show that where the litigant was not negligent or careless then
before passing any adverse order he should be put to notice and
for the mistake of counsel the party cannot suffer. While pleading
that sufficient opportunity was not granted before passing ex-
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parte decree, the learned counsel for the appellants-defendants
has relied upon the judgment of Sangram Singh Vs. Election
Tribunal, Kotah & Ors. reported in 1955 (1) SCC 323, G.P
Srivastava Vs. R.K. Raizada reported in 2000 (3) SCC 54, he
has also pleaded violation of natural justice while passing ex-parte
judgment and decree by placing reliance upon the judgments
delivered by the Hon’ble Supreme Court in the case of Neerja
Realtors Pvt. Ltd. Vs. Janglu (Dead) through LRs reported in
2018 (2) SCC 649 and International Woollen Mills Vs.
Standard Wool (U.K.) Ltd. reported in 2001 (5) SCC 265.
26. Per contra, learned counsel for the respondent-plaintiff,
while defending the impugned order dated 05.03.2024 would
submit that the learned Court below has meticulously examined all
the facts and by assessing the conduct of the appellants-
defendants in avoiding the Court proceedings earlier to drawing
ex-parte proceedings and even thereafter, application for setting
aside ex-parte decree has been dismissed.
27. Learned counsel for the respondent-plaintiff would also
submit that no material whatsoever has been placed on record by
the appellant-defendants in support of their application under
Order 9 Rule 13 CPC in order to show that all the appellants-
defendants were suffering from Corona virus. It was pointed out
by the learned counsel for the respondent-plaintiff that even in the
pleadings, no justification has been given for not appearing before
the learned Commercial Court on 24.03.2021, when the ex-parte
proceedings were drawn against the appellants-defendants. That
apart, nothing has been mentioned in the application to justify
their non-appearance in all the proceedings from 02.07.2020 to
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24.03.2021, when the ex-parte proceedings were drawn against
the appellant-defendants. Pleadings are also silent in respect of
any justified reasons for not appearing on 13 different dates
between 24.03.2021 (i.e., the date of drawing ex-parte
proceedings) to 02.12.2021, when the ex-parte judgment and
decree was delivered by the learned Court below.
28. While indicating the slackness of appellants-defendants
in diligently pursuing their application for setting aside ex-parte
judgment and decree 02.12.2021, it was argued by the learned
counsel for the respondent-plaintiff that admittedly certified copy
of judgment and decree dated 02.12.2021 was made available to
the appellants-defendants on 23.12.2021, however, nothing has
been mentioned in the entire application for not proceeding for
setting aside ex-parte decree for a period of more than two and
half months and even after obtaining certified copy on
23.12.2021, the application was moved on 07.03.2022.
29. Learned counsel for the respondent-plaintiff would
submit that even after filing the application under Order 9 Rule 13
CPC, the appellants-defendants were not vigilant about pursuing
the same seriously and although the application was filed on
07.03.2022, yet on 27.04.2022 they sought time to file amended
cause title and despite orders passed by learned Commercial
Court on 18.10.2022, 07.01.2023, 27.02.2023, 22.06.2023,
16.11.2023 & 18.11.2023 necessary steps for filing process fee
and notice of the summons were not taken, which fortifies the
facts that the appellants-defendants have been negligent and
were not keen to contest the matter on merits and their sole
intention was to languish the proceedings.
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30. Learned counsel for the respondent-plaintiff would
further submit that the conduct of the party applying for setting
aside the decree is significantly relevant for the purpose of
deciding the application and the reasons assigned in the
application should reflect sufficient cause for non-appearance,
which is not there in the instant case.
31. In the instant case, persistent reluctance of the
appellants-defendants towards the Court proceedings and
deliberate delays caused by them in pursuing their application
would disentitle them for seeking any relief in such application. He
prayed for dismissing the application filed by the appellants-
defendants.
32. We have heard the learned counsel for the parties and
perused the record in meticulous manner.
33. Bare perusal of the record of the learned Court below,
more particularly the order-sheets drawn in the civil suit, would
reveal that the appellants-defendants were not serious to pursue
their cause and rather they were totally negligent. It is clear that
on account of non-appearance on three consecutive dates, ex-
parte proceedings were drawn against the appellants-defendants
on 24.03.2021. We find that suit was not finally decided
immediately and even thereafter the learned Commercial Court
took as many as nine months in deciding the suit finally, for which
as many as 13 hearings took place on different dates. Thus, it is
clear that the appellants-defendants or their counsel remained
continuously absent on as many as (13+3=16) 16 different dates.
During these 16 dates, there was a total time gap of one year and
five months. It is very difficult to believe that during such period
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the appellants-defendants were ignorant of the proceedings and
they did not contact their counsel. Nature of the dispute is related
to commercial transaction and nothing has been mentioned in the
application filed by the appellants-defendants that during such
period they were not carrying on their routine business running
through M/s Tirupati Fab Oils & Chemicals (Appellant No.1). When
they can run their regular business even during such period of one
year and five months, then not pursuing the litigation relating to
the business transaction for the ostensible reasons shown in
application is apparently a deliberate and wilfull negligence on the
part of appellants-defendants.
34. We also find that the ex-parte proceedings were drawn
against the defendants No.2 to 4 alleged to be a partner of
defendant No.1. Defendant No. 4 is husband of defendant No.3,
however, we find that no application whatsoever was filed on
behalf of defendant No.4 (Sh. Vinil @ Vinit Gupta), who has been
shown to be authorized manager of partnership firm namely M/s
Tirupati Fab Oils & Chemicals (Appellant No.1). Nothing has been
mentioned in the entire application for not impleading defendant
No.1 as applicant in the application under Order 9 Rule 13 CPC nor
has anything been mentioned that even the defendant No.4 was
not having information with regard to proceedings of the case.
35. Merely stating that at the relevant period on account of
spread of Covid-19 virus, they could not attend the proceedings
would not be enough, more particularly when nothing has been
placed on record to show that all the partners of appellant-
defendant No.1 were suffering from illness relating to aforesaid
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virus or were not even carrying on their routine business relating
to the appellant-defendant firm.
36. The appellants-defendants have come out with a case
that it was simply a mistake or omission on the part of their
counsel, however, we find that no material whatsoever was placed
on record to show that despite their diligent efforts, the counsel
failed to appear, nor is their anything on record to prove that they
have taken any steps against their counsel.
37. In the case of Parimal Vs. Veena alias Bharti
reported in 2011 (3) SCC 545, the Hon’ble Supreme Court has
held as under:
“In order to determine the application
under Order 9 Rule 13 CPC, the test that has
to be applied is whether the defendant
honestly and sincerely intended to remain
present when the suit was called on for
hearing and did his best to do so. Sufficient
cause is thus the cause for which the
defendant could not be blamed for his
absence. Therefore, the applicant must
approach the court with a reasonable
defence.”
38. From the proceedings of the learned Court below it
would reveal that the appellants-defendants never intended to
remain present honestly and sincerely and they cannot blame the
learned Court below for not granting proper opportunity of
hearing. The judgments cited on behalf of the appellants-
defendants with regard to violation of principles of natural justice
are not at all applicable in the instant case, where admittedly the
summons were served upon the appellants-defendants and after
engaging their counsel even written statements and miscellaneous
applications were also filed by them. We also find that before
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passing the judgment and decree dated 02.12.2021 so many
opportunities on different dates were given by the learned
Commercial Court and the matter was not decided abruptly on a
single date after drawing ex-parte proceedings. As stated above
even after drawing ex-parte proceedings, hearing before the
learned Court below has taken place on 13 different dates for nine
long months. Thus, we find that the appellants-defendants have
utterly failed to place any sufficient cause for their non-
appearance before the Court. The learned Court below in
impugned order dated 05.03.2024 has also recorded that although
it was stated in the application for setting aside ex-parte decree
that appellant-defendant No.2 was suffering from disease relating
to Covid-19, yet no document whatsoever with regard to her
hospitalization from 11.05.2021 to 22.06.2021 was placed on
record by the appellants-defendants. As such the entire
application filed by the appellants-defendants before the learned
Court below was totally vague and evasive.
39. We are also mindful of the fact that the very purpose
for constitution of learned Commercial Court is to expedite the
disputes relating to commercial transaction, however, in the
instant case it is clear that instead of co-operating with the
learned Commercial Court below and deciding the controversy
expeditiously, the appellants-defendants have adopted different
devices to delay the proceedings and languish the cause for
unjustified reasons.
40. It has been argued on behalf of the appellants-
defendants as if the learned Court below has dismissed their
application under Order 9 Rule 13 CPC only on account of being
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time barred, however, we find that the application has not been
dismissed on account of being filed beyond limitation, rather the
learned Court below has examined the merits relating to sufficient
cause with regard to absence of appellants-defendants on the
relevant dates.
41. Having considered the order-sheets of the learned
Court below, contents of the application and material on record,
we find that the application under Order 9 Rule 13 CPC filed by the
appellants was wholly untenable. The law postulates that for
setting aside an ex-parte decree, the applicant must establish
‘sufficient cause’ for non-appearance on the date of hearing. The
expression ‘sufficient cause’ cannot be stretched to accommodate
sheer negligence or deliberate procrastination. In the present
case, the appellants-defendants have failed to demonstrate any
cogent or bonafide reasons preventing their appearance before the
Court. On the contrary, the record reveals repeated indulgence by
the learned Court below, coupled with so many prior opportunities
before passing the final decree which were not availed by the
appellants-defendants without justifiable cause. Such conduct
manifests not a case of unavoidable circumstances, but of
calculated disregard for judicial process. It is well settled that
negligence, inaction or casual attitude cannot be equated with
sufficient cause. Therefore, in absence of any convincing
explanation, the prayer for recalling the ex-parte decree was
devoid of any substance and merit.
42. For the foregoing reasons, we find that negligence of
the appellants-defendants in pursuing their cause before the
learned Court below is quite egregious and conspicuous. No
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sufficient cause whatsoever has been placed on record for
justifying their reasons before the learned Court below on
24.03.2021 as well as for a continuous period of around one year
and seven months thereafter on 16 different dates. Hence, we do
not find any substance and merit in the appeal filed by the
appellants. The learned Court below has committed no mistake in
dismissing the application under Order 9 Rule 13 CPC filed by the
appellants-defendants.
43. Accordingly, the appeal filed by the appellants-
defendants is hereby dismissed.
44. All pending applications, if any, stand disposed of.
45. Record of the learned Court below be sent back.
(ANAND SHARMA),J (INDERJEET SINGH),J
DAKSH/59
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