The Madhya Pradesh High Court at Indore has ordered a rehearing of a second appeal that was decided ex-parte, holding that litigants should not suffer because their lawyer failed to appear in court. Justice Pavan Kumar Dwivedi restored the appeal after finding sufficient cause for the respondents’ absence and condoned a delay of 86 days in filing the rehearing application
Background of the Case
The matter arose from a long-running family property dispute. The original civil suit was filed in 1998 seeking declaration of title and partition. While the trial court’s decision was partly modified by the first appellate court in 2004, the plaintiffs challenged that order before the High Court in a second appeal.
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During the pendency of the second appeal, the legal heirs of original respondent Dayaram @ Dayla were already on record and had engaged a counsel. The court record showed that their lawyer appeared until October 2015 but stopped attending hearings from January 2016 onwards. Despite repeated listings over several years, no special peremptory notice was issued to the respondents. Eventually, on 15 April 2025, the second appeal was decided ex-parte in their absence.
The respondents later approached the court under Order 41 Rule 21 of the Civil Procedure Code, seeking a rehearing. They claimed their counsel neither appeared nor informed them about the listing of the appeal or the ex-parte judgment. According to them, they learned about the decision only after receiving a caveat in August 2025.
Arguments Before the Court
Counsel for the applicants argued that the non-appearance was entirely due to the lawyer’s lapse.
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“The parties had done everything expected of them by engaging a counsel,” he submitted, relying on Supreme Court rulings which say a litigant should not be punished for an advocate’s fault.
On the other hand, the respondents opposed the plea, pointing out that execution proceedings had started soon after the ex-parte judgment and that the applicants had participated before the Tehsildar. This, they argued, showed prior knowledge of the order and lack of bona fides.
Court’s Observations
After examining the record, the High Court noted that there was no material to show that the respondents were aware of the appeal being listed for final hearing. The court observed that once a party engages a lawyer, it is reasonable for them to believe that their case is being handled.
Referring to the Supreme Court’s decision in Rafiq v. Munshilal, the bench reiterated that “it is no part of a litigant’s duty to act as a watchdog of the advocate.” Justice Dwivedi emphasized that the key issue was whether there was sufficient cause for absence on the hearing date, not when the parties later came to know of the ex-parte order.
The court also distinguished the judgments cited by the opposing side, noting that the facts in those cases were materially different.
Decision
Allowing the application, the High Court condoned the delay and ordered that the second appeal be listed for rehearing. At the same time, it directed the applicants to pay costs of ₹10,000 to the opposing parties within six weeks.
With these directions, the miscellaneous civil case was disposed of.
Case Title: Dayaram @ Dayla (Deceased) Through LRs Anter Singh & Others vs. Smt. Raju Bai & Others
Case Number: Misc. Civil Case No. 2808 of 2025
Pronounced Date: 15 January 2026
