Litigants must remain vigilant in their legal representation; absence due to counsel's instruction without good cause does not justify setting aside ex parte orders.

JUDGMENT :

Nidhi Gupta, J.

Present petition under Article 227 of the Constitution of India has been filed by the defendant No.2 for setting aside order dated 11.11.2024 (Annexure P3) passed by learned trial Court vide which the petitioner has been proceeded against ex parte as the counsel for the petitioner pleaded no instructions; and further for setting aside order dated 04.02.2025 (Annexure P6) vide which the learned trial Court dismissed the application filed by the petitioner under Order 9 Rule 7 CPC .

2. Learned counsel for the petitioner submits that vide order dated 11.11.2024 (Annexure P3), the petitioner was proceeded against ex parte by the learned trial Court as counsel for the petitioner before the learned trial Court had pleaded 'no instructions' from the petitioner. Learned counsel contends that before proceeding against ex parte against the petitioner, it was incumbent upon the learned trial Court to issue notice to the petitioner. It is reiterated that the learned trial Court could not have proceeded ex parte against the petitioner without first issuing notice to the petitioner. In support, learned counsel relies upon judgment of Hon'ble Supreme Court in " Malkiat Singh Vs. Joginder Singh " Law Finder Doc ID # 34819, wherein it is held that:-

" Civil Procedure Code, 1908 , Order 9 Rule 13 - Ex-parte decree - Setting aside of- Appellants were neither careless nor negligent - They had engaged a counsel and defending the suit - The trial Court which had admittedly not issued any notice to the appellants after their counsel had reported no instructions should have proceeded in the case from the stage when the counsel reported no instructions - Appellants cannot in the facts and circumstances of the case be said to be at fault and they should not suffer. 1993 (Supp) 3 SCC 256 followed."

3. Learned counsel also relies upon judgment of this Court in " Smt. Jagdish Kaur Bagga Vs. Jarnail Singh " Law Finder Doc ID it 349928.

4. Learned counsel for the petitioner submits that the petitioner had filed an application under Order 9 Rule 7 CPC read with Section 151 dated 18.12.2024 (Annexure P4) seeking setting aside of the ex parte order dated 11.11.2024. Learned counsel contends that once the petitioner had filed the application at least at that stage, the petitioner should have been allowed to tender evidence.

5. It is further submitted that on 11.11.2024, when the petitioner was proceeded against ex parte the respondent no. 1 i.e. Mohinder Singh was already being cross examined by the counsel for the pro-forma respondent no.6 and further the remaining cross examination was deferred for the next date i.e. on 28.11.2024. So, it was not the situation that the respondent no.1 was not being cross examined at all and it was also not possible that on the same day itself when the cross examination on behalf of the counsel for the pro-forma respondent has not been completed as yet then the counsel for the petitioner would have started the cross examination in between by stopping the ongoing cross examination by the counsel for pro-forma respondent no.6. In other words on 11.11.2024, even if counsel for the petitioner would not have pleaded no instructions, the petitioner was not in a situation to cross examine the said witness i.e. Mohinder Singh as cross examination by the counsel for pro-forma respondent no.6 was also going on, so there was no occasion for the Id. Trial court to proceed him ex parte. Even further, on the next date i.e. on 28.11.2024, the said Mohinder Singh was again cross examined by the couns