Phoolaram [Petitioner] VS. Bajranglal [Respondent]
S.B. Civil Writ Petition No. 14628/2024
(Hon’ble Justice Nupur Bhati)
The Rajasthan High Court recently set aside an ex-parte order, emphasizing that a party should not bear the consequences of their counsel’s failure to appear or arrange for alternative representation. The case arose from a writ petition challenging an order by the Trial Court, which had allowed an application filed by the respondents-defendants under Order IX Rule 13 of the Code of Civil Procedure, 1908. This application sought to overturn an ex-parte decree. Justice Nupur Bhati, presiding over the case, highlighted that it is unjust to penalize respondents-defendants for their counsel’s inability to make alternative arrangements. Referring to the Supreme Court’s precedent in Rafiq v. Munshilal (1981), the Court reiterated that a party should not suffer due to their lawyer’s inaction. In this case, the petitioner-plaintiff’s counsel argued that it was the responsibility of the respondents’ counsel to ensure proper representation. However, the Court dismissed this contention, stating that justice should not be compromised by the logistical shortcomings of legal representation.
The petitioner, represented by Advocate Nitin Trivedi, had filed a civil suit seeking the cancellation of a sale deed and a perpetual injunction. The respondents-defendants, represented by Advocate Deen Dayal Chitlangi, initially filed a written statement in response to the suit. However, when the respondents failed to appear for proceedings, the Trial Court passed an ex-parte decree in favor of the petitioner, canceling the sale deed and restraining the respondents from transferring or alienating the disputed property. Subsequently, the respondents filed an application under Order IX Rule 13 of the CPC, along with a plea for condonation of delay under Section 5 of the Limitation Act, 1963. They cited their counsel’s medical condition—specifically, a cornea transplant and ongoing eye treatment—as the reason for their absence during the proceedings. The Trial Court accepted these reasons and allowed the application, which led to the present writ petition.
The petitioner’s counsel argued that during the same period, the respondents’ counsel had appeared in other cases, raising doubts about the legitimacy of his medical claims. He also contended that the counsel could have delegated the case to a colleague or sought assistance from his experienced brother, who was also a practicing lawyer. The petitioner maintained that the counsel’s failure to arrange representation should not absolve the respondents of their responsibilities. The High Court, however, upheld the Trial Court’s decision, affirming that the respondents had provided sufficient cause for their absence. It noted that the counsel’s health issues and the significant distance (70 kilometers) between his place of practice and the Trial Court made it impractical for him to attend the proceedings. The Court rejected the petitioner’s argument that the counsel’s failure to make alternative arrangements should penalize the respondents, emphasizing that justice must prevail over procedural rigidity.
In conclusion, the Court ruled that the Trial Court acted within its discretion by setting aside the ex-parte decree. It reiterated that the respondents should not suffer due to their counsel’s inaction, aligning with the principles of justice upheld by the Supreme Court in Rafiq v. Munshilal.