Litigant Shouldn't Suffer for Counsel's Genuine Illness: High Court Upholds Setting Aside of Ex-Parte Decree under Order IX Rule 13 CPC - 2025-06-14

High Court: Counsel's Serious Illness Justifies Setting Aside Ex-Parte Decree, Litigants Not to Suffer

Bikaner, Rajasthan – The High Court, in a significant pronouncement, has upheld a trial court's decision to set aside an ex-parte decree, emphasizing that a litigant should not be penalized for their counsel's inability to appear due to genuine and severe health issues. Justice Nupur Bhati dismissed a writ petition challenging the Additional District Judge, Nokha, Bikaner's order, which had allowed an application under Order IX Rule 13 of the Code of Civil Procedure (CPC).

The court underscored that the counsel's documented prolonged eye ailment, including a cornea transplant, constituted "sufficient cause" for non-appearance, thereby warranting the restoration of the suit for a decision on merits.

Case Background: From Sale Deed Dispute to Ex-Parte Decree

The dispute originated from a civil suit filed on May 3, 2017, by Bajranglal & Anr. (petitioners/plaintiffs) seeking cancellation of a sale deed dated August 23, 2016, and a perpetual injunction. The plaintiffs alleged that out of a total sale consideration of Rs. 15,45,000/-, only Rs. 1,00,000/- was paid by the LRs of Phoolaram (respondents/defendants).

After the defendants filed their written statement, ex-parte proceedings were initiated against them on February 3, 2023. Subsequently, on June 3, 2023, the trial court decreed the suit ex-parte in favor of the plaintiffs, cancelling the sale deed and restraining the defendants from alienating the property.

The defendants then filed an application on July 21, 2023, under Order IX Rule 13 CPC, seeking to set aside the ex-parte decree. They cited their counsel's serious eye condition, involving a cornea transplant and prolonged treatment, as the reason for his non-appearance. The trial court, on July 19, 2024, allowed this application, setting aside the ex-parte decree subject to a cost of Rs. 10,000/-, prompting the original plaintiffs to file the present writ petition before the High Court.

Arguments Before the High Court

Petitioners/Plaintiffs' Contentions: The counsel for the petitioners argued that the trial court erred in setting aside the ex-parte decree. They contended that:

* The defendants' counsel had allegedly appeared in other cases during the period of his claimed illness, suggesting a "pick and choose" approach.

* The counsel had a responsibility to make alternative arrangements for representation, possibly by engaging his brother, an experienced lawyer.

* The distance of 70 km to the court was not a justifiable reason for non-appearance if alternative arrangements could have been made.

Respondents/Defendants' Submissions: Conversely, the respondents' counsel maintained that the trial court's order was just. They highlighted:

* Detailed medical evidence of the counsel's eye condition, including multiple hospital visits, an unsuccessful cornea transplant, and ongoing vision problems necessitating another surgery, spanning from November 2022 to July 2023.

* Litigants should not suffer due to their counsel's unavoidable health-related absence. They cited LRs of Late Smt. Keshar Devi & Ors. v. Smt. Vajeera , where it was held that litigants shouldn't suffer for counsel's negligence, arguing their situation was even stronger as it involved genuine health issues.

* The trial court rightly considered the practical impossibility of the counsel traveling 70km given his medical state.

Court's Reasoning: "Sufficient Cause" and Protecting Litigants' Interests

Justice Nupur Bhati , after examining the records and hearing both sides, found merit in the respondents' arguments and upheld the trial court's decision.

The Court referred to Order IX Rule 13 of the CPC , which allows for setting aside an ex-parte decree if the defendant satisfies the court that they were "prevented by any sufficient cause from appearing."

The High Court noted:

"This court, upon perusal of the material available on record, finds that on 01.09.2022 the counsel representing the respondents-defendants before the learned trial court was present... Meanwhile the counsel...was facing vision related health issues and had to take treatment regularly however, during the subsequent period the cornea of his left eye got completely damaged due to which he had to undergo surgery and was regularly taking treatment for the same, i.e., from the second week of November, 2022 to July, 2023."

The Court found that the counsel's health issues made it "not practically possible" for him to travel 70 km to attend the proceedings.

Addressing the petitioners' argument that the counsel should have made alternative arrangements, the High Court firmly stated:

"...merely because the counsel representing the respondents-defendants failed to make some alternative arrangement, the respondents-defendants cannot be made to suffer for the same as it would not be in the interest of the justice."

In this context, the Court relied on the landmark Supreme Court judgment in Rafiq v. Munshilal, (1981) 2 SCC 788 , wherein it was held:

"What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal...the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented...we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."

The High Court concluded that the respondents-defendants had demonstrated "sufficient cause" for their non-appearance, and the trial court had rightly exercised its discretion.

Final Decision and Implications

The High Court dismissed the writ petition, thereby affirming the trial court's order dated July 19, 2024. The ex-parte decree of June 3, 2023, remains set aside, and the original civil suit concerning the sale deed will now proceed on merits, allowing both parties to present their case.

This judgment reinforces the legal principle that while diligence is expected, genuine and severe incapacitation of counsel can constitute "sufficient cause" for non-appearance, and courts will generally lean towards ensuring that matters are decided after a full hearing rather than allowing ex-parte orders to stand due to such unavoidable circumstances, particularly when the litigant themselves is not at fault.