The Chhattisgarh High Court has ordered the fresh consideration of an application filed under Order 9 Rule 13 of the CPC after noting that the absence of the litigant was not deliberate but occurred due to the lapse on the part of the counsel. The High Court further held that the Court should adopt a liberal approach while considering an application under Order 9 Rule 13 of the Code of Civil Procedure, as well as an application under Section 5 of the Limitation Act.

The High Court was considering the appeals preferred by the appellant/first defendant challenging separate orders of the Trial Court whereby the applications filed by the appellants under Order 9 Rule 13 of the CPC were rejected on the ground of delay.

The Single Bench of Justice Bibhu Datta Guru held, “It is well settled that while considering an application under Order 9 Rule 13 of the Code of Civil Procedure as well as an application under Section 5 of the Limitation Act, the Court should adopt a liberal approach so that a party is not deprived of an opportunity to contest the matter on merits. In the present case, the explanation offered by the appellant indicates that the absence was not deliberate but occurred due to the lapse on the part of his counsel.”

Advocate T. K. Jha represented the Appellant while Deputy Govt. Advocate Anand Gupta represented the State.

Factual Background

The plaintiff preferred a civil suit stating that he is the owner and in possession of certain agricultural lands, and he had never executed any power of attorney in favour of the second defendant (Jairam Dubey). The plaintiff asserted that the alleged registered power of attorney executed in favour of the second defendant did not bear his signature or thumb impression, and the second defendant, in furtherance of a criminal conspiracy and with dishonest intention to usurp the plaintiff’s valuable property, prepared a forged and fabricated power of attorney. It was the defendant’s case that, relying upon a representation, the first defendant purchased the land after paying the entire sale consideration amount to the second defendant, and thereafter the sale deed was duly executed and registered through him.

The Trial Court allowed the suit preferred by the plaintiff ex parte, and the suit was decreed in favour of the plaintiff. Against the said ex parte judgment, the first defendant filed an application under Order 9 Rule 13 of the CPC stating that after filing the written statement, his counsel had assured him that he would inform him whenever his presence was required, but no such information regarding the dates of the hearing was given to him. Subsequently, he filed an application under Section 5 of the Limitation Act stating that, due to a lack of proper legal guidance and bona fide mistake, he could not file the application under Section 5 along with Order 9 Rule 13 of the CPC. The Trial Court dismissed the said applications by the order impugned only on the ground of delay.

Reasoning

On a perusal of the facts of the case, the Bench noted that the ex-parte judgment and decree were passed in the absence of the defendants. The appellant had contended that due to the mistake and negligence of his earlier counsel, he could not remain present on the date fixed for the hearing and was also not informed about the proceedings, due to which he was deprived of an opportunity to contest the suit.

The Bench referred to the judgment of the Supreme Court in Rafiq & Anr. v. Munshilal & Anr. (1981) wherein it has been held that a litigant should not be made to suffer for the fault, negligence or inaction of his counsel. Once a party has engaged an advocate and entrusted him with the conduct of the case, he is entitled to presume that the advocate will properly represent him before the Court, and the litigant cannot be expected to constantly monitor the proceedings or act as a watchdog over the advocate.

Considering that in the instant case, the explanation offered by the appellant indicated that the absence occurred due to the lapse on the part of his counsel, the Bench allowed the appeal while setting aside the impugned orders. “All the matters are remanded back to the trial Court with a direction to decide the applications filed under Order 9 Rule 13 of the CPC afresh on merits in accordance with law”, it ordered.

Cause Title: Ramkrishn Sahu v. Kamal Prasad Kasar (Neutral Citation: 2026:CGHC:16049)

Appearance

Appellant: Advocates T. K. Jha, Parth Kumar Jha

Respondent: Deputy Govt. Advocate Anand Gupta, Panel Lawyer Malay Jain, Advocate Bharat Lal Dembra

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Chhattisgarh High CourtJustice Bibhu Datta Guru

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.