‘Not watchdog of lawyer’: Madhya Pradesh High Court recalls ex-parte order after counsel fails to inform litigant

The petitioners were also seeking the condonation of the delay of 86 days in filing the present application for rehearing of the appeal, pointing to the same reason of their lawyer’s absence.

Justice Pavan Kumar Dwivedi noted that the petitioner’s counsel did not appear in the second appeal hearing after a certain date. (Image is enhanced using AI)

Background

• The legal heir of one Dayla, who is the petitioner in the present case, previously filed a second appeal challenging the judgment of October 2004, where the first appellate court modified the trial court order filed for the declaration of title and partition and only provided a 1/6th share of the property in dispute to the petitioner.
• The second appeal notices were issued and served on the petitioner, and they also allegedly filed their Vakaalatnaama through their advocate.
• The counsels engaged by them remained present before the court, but from October 2015 onward, none of the counsels appeared. However, the matter proceeded, and on various dates, proceedings were carried out in the absence of the petitioners and their advocate.
• The petitioner argued that their engaged counsel did not appear in the second appeal without any reasons.
• They further mentioned that they were not informed about the listing of the case and the passing of an ex parte judgment in April 2025.
• They further submitted that they came to know about the ex parte judgment only after receiving a notice in August 2025 from the opposite parties, following which they decided to file the present application seeking rehearing of the second appeal.

Arguments

• Appearing for the petitioner, advocate Vaibhav Bhagwat argued that it is purely a mistake on the part of the counsel who failed to appear and even failed to give any satisfactory answer as to why they did not appear before the court when the appeal was listed on several occasions.
• Bhagwant further argued that the fact of not informing the petitioner about the non-appearance of their advocates constitutes a sufficient cause for not appearing when the appeal was called for hearing.
• Appearing for the other parties, advocate Abhishek Gupta argued that the petitioners did not appear before the court deliberately.
• Gupta argued that the petitioners filed an execution case before the court of the tehsildar and submitted detailed objections in the said execution case, which suggests that they had complete knowledge of the April 2025 order at least by the last week of May 2025.
• He further prayed for dismissal of the present case, pointing out that the petitioners have not approached the court with clean hands.

Findings

• The applicants engaged a lawyer who represented them up to October 2015. However, from January 2016 onward, the advocate stopped appearing for their case, allegedly without mentioning any reason.
• There is no document to show that the applicants were aware about listing of the case.
• It was noted that no SPC was even issued by the court, considering the absence of their counsel.
• The applicants have made out their case, establishing sufficient cause for not appearing when the case was called for a hearing in February 2025.
• The applicants have shown sufficient cause that prevented them from appearing before the court in the second appeal when the case was called for hearing.
• Subsequent knowledge of the ex parte order through execution proceedings was immaterial.
• The appeal is allowed and directed to be listed for hearing.
• The petitioners, however, were instructed to pay Rs 10,000 to the other parties within a period of six weeks.