Lawyer's Failure To Advise Litigant On Remedy Can Be 'Sufficient Cause' To Condone Delay: MP High Court

The Madhya Pradesh High Court has remanded an application seeking condonation of delay to the trial court, noting that a litigant who is completely dependent upon his lawyer should not be made to suffer for the lawyer's failure to advise him concerning an ex parte decree. [2026 LiveLaw (MP) 410]

Partially allowing the application, the bench of Justice Vinay Saraf directed:

"In view of this Court, if a litigant is fully dependent upon a Lawyer and a Lawyer has committed mistake by not suggesting to the litigant to file any application for setting aside the ex parte judgment and decree, the defendant should not suffer for that". 

The dispute arises from a suit for specific performance filed by the plaintiff against the defendants (present petitioner) regarding the land situated in Village Machal. The plaintiff claimed that the defendant had entered into an agreement to sell the land for consideration of ₹10 Lakh. However, the plaintiff argued that the defendant failed to execute the sale deed, and thus a suit for specific performance and perpetual injunction was filed. 

After the summons sent to the defendant were returned unserved, the Trial Court permitted substituted service by publication in the newspaper Nai Dunia. Since the defendant did not appear, the Trial Court proceeded and passed an ex parte order. 

Subsequently, in execution proceedings, the defendants alleged they came to know about the ex parte decree. He thereafter approached his lawyer, who failed to advise him to file an application under Order 9 Rule 13 CPC for setting aside the ex parte decree. 

The defendant later learnt that since July 2022, his lawyer had permanently shifted to Kerala. He subsequently approached another lawyer who advised him to file an application under Order 9 Rule 13 CPC challenging the ex parte order. Thus, the defendant filed an application under Order 9 Rule 13 CPC along with an application under Section 5 of the Limitation Act for condonation of delay.

The Trial Court noted that since the defendant appeared in execution proceedings, he had knowledge of the ex parte judgment and dismissed the application. Both the District Judge and the Appellate Court affirmed the said order. 

The court noted that, per the defendant, he was not advised by his earlier lawyer to file any application. The bench emphasized, 

"The reason assigned in the application filed under Section 5 of the Limitation Act is based on the mistake of Lawyer. It is settled position of law that a litigant should not suffer for any mistake committed by the Lawyer". 

The bench also highlighted that the rules of limitation are not meant to "destroy the right of the parties" but seek to provide a legal remedy to repair the damages caused by legal injury. 

Therefore, the court held that the defendant's petition under Order 9 Rule 13 CPC should be considered and decided on merits, as he is now left remediless. 

Accordingly, the court set aside the impugned order and partly allowed the petition, remanding the issue back to the Trial Court for consideration of the application filed under Order 9 Rule 13 CPC. 

For Petitioner: Advocate Anuj Bhargava

For Respondent: Senior Advocate A.K. Sethi with Advocate Harish Joshi

For State: Advocate Youkta Pahadiya