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2026:CGHC:16049

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

MA No. 22 of 2022

Ramkrishn Sahu S/o Bodhan Sahu, Aged About 54 Years R/o Village

Kirwai, Tahsil Simga, District Baloda Bazar (Chhattisgarh) Through

Power Of Attorney Hemlal Sahu S/o Late Ram Krishna Sahu, R/o

Village Kirwai, Tahsil Simga, District Baloda Bazar Chhattisgarh,

District : Balodabazar-Bhathapara, Chhattisgarh

--- Applicant(s)

versus

1. Kamal Prasad Kasar S/o Kanhaiya Lal Kasar, Aged About 59 Years

R/o Near Akhade, Sati Bazar, Raipur, District Raipur Chhattisgarh,

District : Raipur, Chhattisgarh

2. Jairam Dubey, S/o Shri Keshav Prasad Dubey, Aged About 32 Years

R/o Kankalipara, Raipur Tahsil And District Raipur, Other Address-

Rajdhani Photocopy, Janta Colony, Behind Balaji Mandir, Gudiyari,

Raipur Tahsil And District Raipur Chhattisgarh, District : Raipur,

Chhattisgarh

3. State Of Chhattisgarh Through The Collector, District Baloda Bazar

Bhatapara (Chhattisgarh), District : Balodabazar-Bhathapara,

Chhattisgarh

--- Respondent(s)

MA No. 20 of 2022

Dilip Sahu S/o Ram Krishna Sahu Aged About 29 Years R/o Village

Kirwai, Tahsil Simga, District Baloda Bazar, Through Power Of Attorney

Hemlal Sahu S/o Late Ram Krishna Sahu, R/o Village Kirwai, Tahsil

Simga, District Baloda Bazar (C.G.)

---Appellant(s)

Versus

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1. Kamal Prasad Kasar S/o Kanhaiya Lal Kasar, Aged About 59 Years

R/o Near Akhade, Sati Bazar, Raipur, District Raipur (C.G.)

2. Jairam Dubey S/o Shri Keshav Prasad Dubey Aged About 32 Years

R/o Kankali Para Raipur Tehsil And Distt. - Raipur Other Address-

Rajdhani Photocopy, Janta Colony, Behind Balaji Mandir, Gudiyari

Raipur Tehsil District Raipur (C.G.)

3. State Of Chhattisgarh Through The Collector, District Baloda Bazar-

Bhatapara (C.G.)

--- Respondent(s)

MA No. 21 of 2022

1. Hemlal Sahu S/o Ramkrishan Sahu, Aged About 25 Years R/o Village

Kirwai, Tahsil Simga, District Baloda Bazar, (C.G.)

---Appellant(s)

Versus

1. Kamal Prasad Kasar S/o Kanhaiya Lal Kasar, Aged About 59 Years

R/o Near Akhade, Sati Bazar, Raipur, District Raipur (C.G.)

2. Jairam Dubey S/o Shri Keshav Prasad Dubey Aged About 32 Years

Other Address- Rajdhani Photocopy, Janta Colony, Behind Balaji

Mandir, Gudiyari Raipur Tehsil District Raipur (C.G.)

3. State Of Chhattisgarh Through The Collector, District Baloda Bazar-

Bhatapara (C.G.)

--- Respondent(s)

MA No. 17 of 2022

1. Tirith Sahu S/o Bodhan Sahu Aged About 61 Years R/o Village

Kirwai, Tahsil- Simga, District- Baloda Bazar, Chhattisgarh, District :

Balodabazar-Bhathapara, Chhattisgarh

---Appellant(s)

Versus

1. Kamal Prashad Kasar, S/o Kanhaiya Lal Kasar Aged About 59 Years

R/o Near Akhade, Sati Bazar, Raipur, District- Raipur, Chhattisgarh,

District : Raipur, Chhattisgarh

2. Jairam Dubey S/o Shri Keshav Prasad Dubey Other Address-

Rajdhani Photocopy, Janta Colony, Behind Balaji Mandir, Gudiyari,

Raipur, District- Raipur, Chhattisgarh, District : Raipur, Chhattisgarh

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3. State Of Chhattisgarh Through The Collector, District- Baloda Bazar-

Bhatapara, Chhattisgarh, District : Balodabazar-Bhathapara,

Chhattisgarh

--- Respondent(s)

MA No. 16 of 2022

1. Lalaram S/o Tirith Ram Sahu, Aged About 34 Years R/o Village

Kirwai, Tahsil Simga, District Baloda Bazar, Through Power Of Attorney

Tirith Ram Sahu S/o Late Bodhan Sahu, Aged About 61 Years, R/o

Village Kirwai, Tahsil Simga, District Baloda Bazar (Chhattisgarh),

District : Balodabazar-Bhathapara, Chhattisgarh

---Appellant(s)

Versus

1. Kamal Prasad Kasar S/o Kanhaiya Lal Kasar, Aged About 59 Years

R/o Near Akhade, Sati Bazar, Raipur, District Raipur Chhattisgarh,

District : Raipur, Chhattisgarh

2. Jairam Dubey, S/o Shri Keshav Prasad Dubey, Aged About 32 Years

Other Address- Rajdhani Photocopy, Janta Colony, Behind Balaji

Mandir, Gudiyari, Raipur, District Raipur Chhattisgarh, District : Raipur,

Chhattisgarh

3. State Of Chhattisgarh Through The Collector, District Baloda Bazar

Bhatapara Chhattisgarh, District : Balodabazar-Bhathapara,

Chhattisgarh

--- Respondent(s)

MA No. 19 of 2022

1. Lalji Sahu S/o Tirath Ram Sahu, Aged About 33 Years R/o Village

Kirwai, Tahsil Simga, District Baloda Bazar, Through Power Of Attorney

Tirith Ram Sahu S/o Late Bodhan Sahu, Aged About 61 Years,r/o

Village Kirwai, Tahsil Simga, District Baloda Bazar (C.G.)

---Appellant(s)

Versus

1. Kamal Prasad Kasar S/o Kanhaiya Lal Kasar, Aged About 59 Years

R/o Near Akhade, Sati Bazar, Raipur, Distrct Raipur (C.G.)

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2. Jairam Dubey, S/o Shri Keshav Prasad Dubey Aged About 32 Years

R/o Kankali Para Raipur Tehsil And District Raipur Other Address-

Rajdhani Photocopy, Janta Colony, Behind Balaji Mandir, Gudiyari,

Raipur, District Raipur (C.G.)

3. State Of Chhattisgarh Through The Collector, District Baloda Bazar-

Bhatapara (C.G.)

--- Respondent(s)

MA No. 18 of 2022

1. Jivrakhan Sahu S/o Ram Krishna Sahu, Aged About 27 Years R/o

Village Kirwai, Tahsil Simga, District Baloda Bazar, Through Power Of

Attorney Hemlal Sahu, R/o Village Kirwai, Tahsil Simga, District Baloda

Bazar Chhattisgarh, District : Balodabazar-Bhathapara, Chhattisgarh

---Appellant(s)

Versus

1. Kamal Prashad Kasar, S/o Kanhaiya Lal Kasar, Aged About 59 Years

R/o Near Akhade, Sati Bazar, Raipur, District Raipur Chhattisgarh,

District : Raipur, Chhattisgarh

2. Jairam Dubey, S/o Shri Keshav Prasad Dubey, Aged About 32 Years

Other Address- Rajdhani Photocopy, Janta Colony, Behind Balaji

Mandir, Gudiyari, Raipur, District Raipur Chhattisgarh, District : Raipur,

Chhattisgarh

3. State Of Chhattisgarh Through The Collector, District Baloda Bazar

Bhatapara (Chhattisgarh), District : Balodabazar-Bhathapara,

Chhattisgarh

--- Respondent(s)

For Appellant : Mr. T. K. Jha along with Mr. Parth Kumar Jha,

Advocate

For Respondent No. 1 : Mr. Bharat Lal Dembra, Advocate

For Respondent No. 2 : None, though served.

For Respondent/ State :Mr. Anand Gupta, Dy. G.A. and Mr. Malay Jain,

PL

Hon’ble Shri Bibhu Datta Guru, Judge

Order on Board

08/04/2026

Heard.

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1.Since all the appeals assail the common order and involve

interconnected issues, they were heard and being disposed off by

this common judgment.

2. The present appeals have been preferred under Order 43 Rule 1 (d)

of the CPC by the appellant/ defendant No.1 challenging separate

orders dated 05.01.2022 passed by the learned Trial Court in

different MJCs whereby the applications filed by the respective

appellants herein under Order 9 Rule 13 of the CPC have been

rejected on the ground of delay.

3.The plaintiff Kamal Prasad Kasar preferred civil suit stating inter

alia that he is the owner and in possession of certain agricultural

lands situated in Village Kirwai and Village Darchura, Tahsil

Simga, District Baloda Bazar, Chhattisgarh. According to the

plaintiff, the said lands are his lawful property and he has full

ownership and possessory rights over them. It is further pleaded

that the plaintiff had never executed any power of attorney in

favour of defendant No.2 (Jairam Dubey) nor had he appeared

before the Sub-Registrar Office, Raipur for execution or

registration of any such document for selling the aforesaid lands

or any part thereof. The plaintiff asserts that the alleged registered

power of attorney purportedly executed in favour of defendant

No.2 does not bear his signature or thumb impression. The

plaintiff has alleged that defendant No.2, in furtherance of a

criminal conspiracy and with dishonest intention to usurp the

plaintiff’s valuable property and to gain unlawful benefit, prepared

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a forged and fabricated power of attorney by fraudulently affixing

the plaintiff’s forged signatures and thumb impressions without his

knowledge or consent. Further, he categorically pleaded that he

has never executed a power of attorney in favour of Jairam Dubey

on 26.10.2010 and despite the said fact he has sold the land

belonging to him to several persons by executing different sale

deeds and hence the sale deeds as well as the power of attorney

be declared as null and void.

4.Defendant No.1 filed his written statement contending that upon

coming to know about the plaintiff’s intention to sell the land, he

approached the plaintiff, who introduced defendant No.2 Jayaram

Dubey as his authorized power of attorney holder. The plaintiff

allegedly showed the power of attorney and represented that

defendant No.2 was authorized to deal with the sale of the land,

receive the sale consideration and complete the registration on his

behalf. It was further pleaded that relying upon such

representation, defendant No.1 purchased the land after paying

the entire sale consideration amount to defendant No.2 and

thereafter the sale deed was duly executed and registered

through him. On the basis of the said registered transaction,

defendant No.1 claims to have become the lawful owner and to be

in possession and cultivation of the suit land. Defendant No.1

denied the allegations of forgery and fraud and asserted that the

power of attorney as well as the sale deed executed on its basis

are valid and binding upon the plaintiff. It was also contended that

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the plaintiff himself had shown the loan book and other relevant

documents at the time of the transaction, therefore the allegation

that the documents were forged without his knowledge is

baseless. It was further contended that the plaintiff has already

received the entire sale consideration through his power of

attorney holder and therefore he is not entitled to any injunction

against defendant No.1. The suit is also stated to be barred by

limitation and insufficiently stamped and has been filed only due to

disputes between the plaintiff and defendant No.2. However, after

filing the written statement, defendant No.1 did not participate in

the proceedings at the stage of evidence and was proceeded ex

parte thereafter.

5.Defendant No.2, Jayaram Dubey, also filed his written statement

denying the allegations made in the plaint. He specifically denied the

plaintiff’s contention that no power of attorney dated 26.02.2010 was

executed in his favour. It was contended that the said power of

attorney bears the thumb impression of the plaintiff and was duly

executed and registered before the Sub-Registrar, Raipur, and

therefore the document is valid and binding upon the plaintiff.

Defendant No.2 further denied the allegation that the power of

attorney or other documents were forged or fabricated. He also

denied the allegation that any impersonation had been made in

place of the plaintiff for execution of the document. According to

him, the plaintiff himself had appeared before the Sub-Registrar

and executed the power of attorney in his favour. It was also

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contended that the loan book had already been issued prior to the

execution of the power of attorney and had been provided by the

plaintiff himself. It was further pleaded that on the basis of the

valid power of attorney, the sale deed was executed in favour of

defendant No.1 and the same is binding upon the plaintiff. The

name of defendant No.1 has also been duly recorded in the

revenue records and therefore the plaintiff is not entitled to any

relief in respect of the suit land. The allegation that the plaintiff

was cultivating the land or that he suffered any loss due to the

alleged sale was also denied. Defendant No.2 further stated that

the plaintiff had earlier lodged a complaint before the Special

Investigation Cell but did not pursue the same. He also contended

that on the instructions of the plaintiff he had executed another

registered sale deed in favour of a third person in respect of other

land, which was never challenged by the plaintiff, thereby

indicating that the power of attorney was genuine. Accordingly, it

was contended that the suit has been filed on false and baseless

grounds and is liable to be dismissed, and the defendant claimed

compensation of Rs.10,000/- for being unnecessarily dragged into

litigation. However, after filing the written statement, defendant

No.2 did not participate in the proceedings at the stage of

evidence and was proceeded ex parte thereafter.

6.After considering the entire aspect of the matter, the learned Trial

Court allowed the suit preferred by the plaintiff ex-parte relying

upon the testimony and report of the fingerprint and handwriting

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expert Dr. Kumari Sunanda Denge (PW-2), who compared the

questioned signatures and thumb impressions appearing on the

alleged power of attorney with the admitted and specimen

signatures and thumb impressions of the plaintiff. After

examination, the expert opined that the questioned signatures and

thumb impressions on the power of attorney did not match with

those of the plaintiff and were made by a different person. The

Court observed that the expert was a qualified and experienced

forensic specialist and her report remained unchallenged in cross-

examination. Placing reliance on the expert opinion under Section

45 of the Indian Evidence Act, the Court held that the plaintiff had

not executed the alleged power of attorney in favour of defendant

No.2. Consequently, the Court held that defendant No.2 had no

authority to execute the sale deed on behalf of the plaintiff and

therefore the sale deed executed in favour of other persons on the

basis of such power of attorney was void and did not confer any

valid title. Accordingly, the plaintiff was held entitled to declaration

of title, possession and permanent injunction and thus the suit

was decreed in favour fo the plaintiff.

7.Against the said ex parte judgment and decree, defendant No.1 filed

an application under Order 9 Rule 13 of the CPC stating that after

filing the written statement his counsel had assured him that he

would inform him whenever his presence was required, however no

such information regarding the dates of hearing was given to him.

He came to know about the ex parte decree only in November 2016

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upon receiving a notice from the Tahsildar. Thereafter, he obtained

certified copies of the judgment and decree. It was further stated that

he had entrusted the matter to his counsel for taking appropriate

steps, however no application or appeal was filed, and when he

personally contacted another advocate he came to know that no

appeal had been filed and the file was returned to him, after which

the present application was filed, attributing the delay to lack of

communication and negligence on the part of the previous counsel.

Subsequently, he has filed an application under Section 5 of the

Limitation Act stating that lack of proper legal guidance and bona

fide mistake, he could not file the application under Section 5 along

with the Order 9 Rule 13 of the CPC.

8.However, the learned Trial Court dismissed the said applications by

the order impugned only on the ground of delay without entering into

the merits of the Order 9 Rule 13 of the CPC. Thus these appeals.

9.Learned counsel for the appellant submitted that the appellant is

aggrieved by the order of the trial court whereby the application filed

under Order 9 Rule 13 of the CPC for setting aside the ex parte

judgment and decree was rejected. It is contended that the appellant

came to know about the ex parte judgment and decree only when a

notice was received in mutation proceedings before the Tahsildar.

Thereafter, he applied for and obtained the certified copy of the

judgment and consulted his counsel for taking appropriate legal

steps. However, due to lack of proper communication and

negligence on the part of his previous counsel, instead of filing an

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application for setting aside the ex parte decree before the trial

court, the matter was forwarded to another advocate for filing an

appeal before the High Court, which was also not filed and the

documents were returned to the appellant. It is further submitted

that thereafter the appellant promptly filed an application under

Order 9 Rule 13 CPC as also the application under Section 5 of

the Limitation Act with delay, which occurred due to bona fide

reasons and circumstances beyond his control. Learned counsel

argued that the delay was neither intentional nor deliberate and

the case ought to be decided on merits rather than on technical

grounds. It is therefore prayed that the impugned order rejecting

the application be set aside and the appellant be granted an

opportunity to contest the suit on merits. He further placed

reliance in the case of Dwarika Prasad Vs. Prithvi Raj Singh

(2024 INSC 1030).

10. On the other hand, learned counsel for the respondent/plaintiff

supported the impugned order and submitted that the trial Court,

after considering the reasons assigned by the defendant in the

application, has rightly rejected the application under Section 5 of

the Limitation Act and consequently rejected the application under

Order 9 Rule 13 CPC. It is contended that the defendant failed to

show sufficient cause for the delay by assigning sufficient and

cogent reasons, and therefore the trial Court was justified in

rejecting the application. Hence, the impugned order does not call

for any interference.

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11.I have heard learned counsel for the parties and perused the

impugned orders.

12. Having heard learned counsel for the parties and upon perusal

of the record, this Court finds that the ex-parte judgment and decree

was passed in absence of the defendants. The appellant has

contended that due to the mistake and negligence of his earlier

counsel he could not remain present on the date fixed for hearing

and was also not informed about the proceedings, due to which he

was deprived of an opportunity to contest the suit.

13. It is well settled that while considering an application under Order 9

Rule 13 of the Code of Civil Procedure as well as an application

under Section 5 of the Limitation Act, the Court should adopt a

liberal approach so that a party is not deprived of an opportunity to

contest the matter on merits. In the present case, the explanation

offered by the appellant indicates that the absence was not

deliberate but occurred due to the lapse on the part of his counsel.

14.The Hon’ble Supreme Court in Rafiq & Anr. v. Munshilal & Anr.

reported in (1981) AIR (SC) 1400 has held that a litigant should not

be made to suffer for the fault, negligence or inaction of his counsel.

Once a party has engaged an advocate and entrusted him with the

conduct of the case, he is entitled to presume that the advocate will

properly represent him before the Court, and the litigant cannot be

expected to constantly monitor the proceedings or act as a

watchdog over the advocate. Therefore, the innocent party should

not be penalized for the default of his counsel.

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15.Further in the Supreme Court in the case of Dwarika Prasad

(supra) has also held at para 11 & 12 as under:-

11. The Appellant has relied upon the following

judgments in support of his submissions. In Bhagmal

and Ors Vs. Kunwar Lal and Others (2010 (12) SCC

159) this Court held as follows;

"12. It is to be seen here that the question of delay

was completely interlinked with the merits of the

matter. The appellant-defendants had clearly

pleaded that they did not earlier come to the court

on account of the fact that they did not know about

the order passed by the court proceeding ex parte

and also the ex parte decree which was passed. It

was further clearly pleaded that they came to

know about the decree when they were served

with the execution notice. This was nothing, but a

justification made by the appellant-defendants for

making Order 9 Rule 13 application at the time

when it was actually made. This was also a valid

explanation of the delay. The question of filing

Order 9 Rule 13 application was, in our opinion,

rightly considered by the appellate court on merits

and the appellate court was absolutely right in

coming to the conclusion that the appellant-

defendants were fully justified in filing the

application under Order 9 Rule 13 CPC at the time

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when they actually filed it and the delay in filing the

application was also fully explained on account of

the fact that they never knew about the decree

and the orders starting the ex parte proceedings

against them. If this was so, the Court had actually

considered the reasons for the delay also. Under

such circumstances, the High Court should not

have taken the hypertechnical view that no

separate application was filed under Section 5.

13. The application under Order 9 Rule 13 CPC

itself had all the ingredients of the application for

condonation of delay in making that application.

Procedure is after all handmaid of justice."

12. From the above cases, it is clear that there was no

need to file a separate application for condonation of

delay in the present case as well. The High Court has

erred in taking a hyper technical view and concluding

that there was violation of mandatory provision of law.

Endorsing such a view would effectively mean ignoring

the purpose of judicial procedure. The procedure cannot

stand in the way of achieving just and fair outcome. In

the present case, the Appellant acted bona fide and

diligently. His conduct does not violate any rule of law.

16. In view of the submissions made by the parties and the settled legal

position, this Court is of the opinion that the impugned order dated

05.01.2022 passed in the respective MJCs deserve to be set aside.

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Accordingly, all the appeals are allowed and the impugned orders

are set aside. Delay in filing the MJCs is hereby condoned.

17.All the matters are remanded back to the trial Court with a direction

to decide the applications filed under Order 9 Rule 13 of the CPC

afresh on merits in accordance with law.

18.The parties are directed to appear before the trial Court on 21st

April, 2026. The trial Court shall make an endeavour to decide the

applications under Order 9 Rule 13 CPC within a period of 30

days from the date of appearance of the parties.

19. It is made clear that this Court has not expressed any

opinion on the merits of the case.

20.Registry is directed to send back the entire record to the

concerned trial Court forthwith.

Sd/-

(Bibhu Datta Guru)

JUDGE

Jyoti