The Madhya Pradesh High Court has ruled that a litigant who is completely dependent on his lawyer should not suffer for the lawyer’s failure to advise him about the remedy to set aside an ex parte decree. Partially allowing a civil revision filed by Deepak Afle, the bench of Justice Vinay Saraf condoned a delay of 1093 days in filing an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC), subject to payment of ₹50,000 in costs to the plaintiff.

The ruling reverses orders passed by the trial court and the first appellate court, which had dismissed Afle’s application for condonation of delay. The High Court found that the explanation offered—that Afle’s earlier lawyer never suggested filing an application to set aside the ex parte decree—constituted a “sufficient cause” under Section 5 of the Limitation Act, 1963. The matter has been remanded to the trial court for a fresh decision on the merits of Afle’s application under Order IX Rule 13 CPC.

The Dispute and Ex Parte Decree

The case originates from a suit for specific performance filed by Dharam Developers and Finvest Ltd. in 2017. The plaintiff claimed that Deepak Afle had entered into an agreement to sell land in Village Machal, District Indore, for a consideration of ₹10 lakh, received as part payment. Afle allegedly failed to execute the sale deed, prompting the plaintiff to seek specific performance and a perpetual injunction.

Summons sent to Afle were returned unserved. The trial court permitted substituted service by publication in the daily newspaper “Nai Dunia” on 6 July 2017. Afle did not appear, and the court proceeded ex parte on 24 August 2017. An ex parte judgment and decree for specific performance were passed on 8 August 2019 by the Fifth Civil Judge, Class-I, Indore.

Afle first learned of the decree only when he received a notice in execution proceedings on 20 November 2019. He immediately engaged a lawyer, who appeared in the execution case on 27 November 2019. However, that lawyer never advised Afle to file an application under Order IX Rule 13 CPC to set aside the ex parte decree. In July 2022, Afle discovered that his lawyer had permanently shifted to Kerala. He then retained another lawyer, who advised him to challenge the decree. Afle filed the application under Order IX Rule 13 CPC on 17 November 2022, accompanied by an application under Section 5 of the Limitation Act to condone the delay of 1093 days.

The Lower Courts’ Refusal to Condone Delay

The trial court dismissed the delay condonation application on 13 April 2024, holding that Afle’s conduct was “grossly negligent” and lacked bona fides. Relying on the Supreme Court’s decision in Lanka Venkateswarlu (D) By Lrs. vs State of A.P. & Ors , the trial court concluded that the reasons assigned were neither sufficient nor appropriate. Consequently, the application under Order IX Rule 13 CPC was also dismissed.

Afle appealed to the Thirteenth District Judge, Indore, which upheld the trial court’s order on 28 February 2025. The district judge affirmed that Afle had failed to provide a cogent explanation for the extraordinary delay. Aggrieved, Afle filed a civil revision before the High Court.

High Court’s Observations and Ruling

Justice Vinay Saraf re-examined the cause shown for the delay, noting that the lower courts had exercised their discretion on “wholly untenable grounds” and in a “highly technical manner.” The court observed that Afle was entirely dependent on his lawyer and acted on the lawyer’s advice. The reason for delay—the lawyer’s failure to advise filing an application under Order IX Rule 13 CPC—was based on a mistake of the lawyer.

“It is settled position of law that a litigant should not suffer for any mistake committed by the Lawyer,” the court stated. “The reason assigned in the application filed under Section 5 of the Limitation Act is based on the mistake of Lawyer.”

The High Court further emphasised that the rules of limitation are not meant to destroy the rights of parties. “The object of providing a legal remedy is to repair the damages caused by reason of legal injury,” the court observed, citing the Supreme Court’s decision in N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123. The court also took note of the Covid-19 pandemic, during which the Supreme Court, through its Suo Moto Writ Petition (Civil) No. 3/2020 , had excluded the period from 15 March 2020 to 28 March 2022 from the computation of limitation.

The court concluded that the delay ought to have been condoned, as the defendant would otherwise be left remediless against the ex parte decree of specific performance. “At least the application filed under Order IX Rule 13 of CPC should be considered and decided on merits,” Justice Saraf held.

Order and Consequences

The High Court set aside the orders dated 13 April 2024 passed by the Fifth Civil Judge, Senior Division, Indore, and 28 February 2025 passed by the Thirteenth District Judge, Indore. It allowed the application under Section 5 of the Limitation Act, condoning the delay of 1093 days subject to payment of ₹50,000 in costs to the plaintiff. The matter has been remanded to the trial court, which is directed to restore the miscellaneous case (MJC No. 834/2022) to its original number and decide the application under Order IX Rule 13 CPC on its merits, uninfluenced by any observations made in the revision.

The trial court is now expected to hear Afle’s plea to set aside the ex parte decree. If the decree is set aside, the original suit for specific performance will be restored and heard afresh. The High Court’s decision underscores that the interests of justice require a liberal approach to condonation of delay when the litigant’s default stems from reliance on legal counsel.