A party shall not suffer for the default of their engaged counsel; provided the party briefed the advocate, the counsel's non-appearance without notice constitutes sufficient cause for granting a rehearing under Order 41 Rule 21 CPC, as litigants are not required to monitor every hearing date.

ORDER :

Pavan Kumar Dwivedi, J.

Heard on I.A. No.8458/2025, which is an application for condonation of delay. There is a delay of 86 days in fling the present application for rehearing of appeal.

For the reasons stated in the application, I.A. No.8458/2025, the same is allowed and disposed of. The delay in filing the present application is condoned.

2. The present application has been filed under Order 41 Rule 21 CPC for rehearing of Second Appeal No.105/2005 in which ex-parte judgment and decree dated 15.04.2025 has been passed.

3. The facts of the case are that the present applicants are legal heirs of original respondent No.1/Dayla and were on record as respondent No.1 (a) to (e) in the second appeal. The respondent Nos.1 and 2 had filed the said second appeal being aggrieved by the judgment and decree dated 17.10.2004 passed in RCA No.2A/2002 whereby the first appellate court modified the judgment and decree of the trial court. The said judgment and decree was passed by the trial court in a civil suit instituted by the present respondent Nos.1 and 2 (Civil Suit No.26A/1998) which was filed for declaration of title and partition. The appellate court partially modified the judgment and decree of the trial court inasmuch as while affirming the findings of the trial court that the defendants have not proved that Jairam was not son of Kunwarji and also the finding that upon death of Kunwarji, Jairam and defendant No.1 were having equal shares in his land as also the finding that the defendant No.1 has not proved acquisition of title of the suit property by virtue of adverse possession, has also held that Dayal and Jairam had four sisters and as per the provisions of Hindu Succession Act, 1956 and M.P. Land Revenue Code, 1959, all of them are having a share in the suit land in view of which the share of plaintiffs would be 1/6th. The plaintiffs being aggrieved by this, filed second appeal before this Court. In the said second appeal notices were issued which were duly served upon the respondents and the respondents have filed their Vakaalatnaama through counsel. Initially the Counsels as engaged by them remained present before this Court in the said second appeal, however, from 14.01.2016 onward none of the counsel as engaged by the respondents in second appeal (who are the applicants in the present MCC) appeared. However, the Court proceeded in the matter in absence of the respondents (present applicants) and on various dates certain proceedings were carried out and ultimately on 24.02.2025, the appellants were heard in absence of respondents/present applicants. What is noteworthy here is after noting absence of counsel for respondents on 14.01.2016, the case was listed on 26.02.2016, 09.05.2016, 02.04.2019, 25.02.2020, 09.09.2020 and 24.02.2025. However, on none of the dates SPC was issued to the respondents. The applicants have come before this Court with a case that they had duly engaged counsel for representing them in second appeal but the said counsel without any reasons did not appear in the case. It has also been pleaded that the counsel for present applicants/respondents in the second appeal never informed the applicant about the listing of the case and passing ex-parte judgment and decree on 15.04.2025. It is only when they received caveat in the month of August 2025 from the respondent Nos.1 and 2, that they came to know about ex-parte judgment and decree dated 15.04.2025 as such the present application under Order 41 Rule 21 was filed for rehearing of the appeal by permitting the respondents to argue their case.

4. Learned counsel for the applicant while pointing out above stated facts of the case submits that it is purely a mistake on the part of the counsel as he failed to appear and even failed to give any satisfactory answer that why he did not appear before the Court when the appeal was listed on several occasions. He submits that neither SPC was issued to the respondents / applicants nor the counsel engaged by them