‘Fencesitter’ Litigant Cannot Shift Blame On Advocate; Plea of Ignorance Unacceptable In Era Of Online Orders: Gujarat High Court
Fencesitter litigant does not deserve sympathy when discretionary relief is sought
Justice Devan M. Desai, Gujarat High Court
The Gujarat High Court has held that a litigant who fails to disclose the exact date and source of knowledge of an adverse order cannot later seek indulgence by claiming ignorance, since the court presumes knowledge. The Bench noted that a litigant must remain vigilant and cannot shift the responsibility by blaming Advocate, particularly in an era when court orders are readily available online.
Dismissing a petition seeking restoration of a 24-year civil suit, the Court observed that a “fencesitter” litigant does not deserve sympathy when discretionary relief is sought. A litigant who remains passive and then seeks to revive proceedings after considerable delay cannot expect the Court to exercise discretion in his favour, it noted further.
Justice Devan M. Desai observed, “A litigant who does not state exact date of knowledge and source of knowledge regarding passing of an order, and in cases where there is no other material found from record to arrive at a conclusion regarding knowledge of impugned order passed against a person, the Court has no other option but to presume that applicant had due knowledge about the passing of impugned order. The litigant who is a fencesitter, does not deserve any sympathy from Court, especially, a discretion has to be exercised”.
“Hence, in my view, blaming learned advocate by a litigant without any evidence / base is nothing but shirking from the responsibilities to remain present in the case and getting updates about proceedings. In the modern era, all judgments and orders are uploaded on the Web-Sites of all Courts. Therefore, no litigant can be permitted to find excuse on the ground that he was not appraised of the judgment and order”, the Bench further observed.
Advocate A R Kadri appeared for the petitioners, Advocate S.P. Majmudar appeared for the respondents..
In the matter, an order of the 5th Additional Civil Judge, Vadodara, was challenged that had rejected a composite application filed under Section 5 of the Limitation Act, 1963 and Order IX Rule 13 CPC. The original Regular Civil Suit, instituted in 2002 for cancellation of a sale deed alleged to be fraudulent, was dismissed for default on 15-10-2018, after the plaintiffs repeatedly failed to lead evidence despite framing of issues in December 2016.
Before the High Court, the petitioners contended that their advocate had remained absent and had not informed them about the dismissal of the suit. They argued that they became aware of the dismissal only when the defendants, initiated steps to deal with the disputed property, and that they should not suffer for the fault of their counsel.
The Court, however, found that the application filed before the trial court did not specify when and how the petitioners acquired knowledge of the dismissal order. Further, no material was placed on record to substantiate the plea that the advocate had failed to communicate the development. The explanation subsequently offered in the writ petition was not borne out from the original pleadings before the trial court.
The record further revealed that after framing of issues, the trial court had issued notice to the plaintiffs and granted them as many as sixteen adjournments to lead evidence. Despite repeated opportunities, the plaintiffs failed to prosecute the suit. In these circumstances, the High Court held that the dismissal for default could not be termed unjustified.
Therefore, reiterating that while courts adopt a justice-oriented approach in delay condonation matters, the bona fides of the litigant must be evident from the record, the Court found no infirmity in the trial court’s refusal to condone the delay of over fourteen months.
Holding that no case for interference under Articles 226 and 227 of the Constitution of India was made out, the petition was dismissed and interim relief, if any, stood vacated.
Cause Title: LR of Sardar Himmatbhai Khokar & Ors. LR of Jesangbhai Amthabhai & Ors. [Neutral Citation: 2026:GUJHC:13773]
Appearances:
Petitioner: A R Kadri, Advocate.
Respondent: S.P. Majmudar, Advocate.