Litigant Should Not Suffer For Lawyer’s Mistake, Condon​es 1,093-Day Delay: MP High Court [Read Order]

Indore: The Madhya Pradesh High Court at Indore has set aside concurrent orders refusing to condone a delay of 1093 days in filing an application under Order IX Rule 13 of the Code of Civil Procedure, 1908 to set aside an ex parte decree of specific performance, holding that a litigant who depends on his lawyer should not suffer for the lawyer's mistake in not advising him to file the application, and remanded the matter for a decision on merits subject to payment of costs of Rs. 50,000.

Justice Vinay Saraf delivered the order on 08.10.2026 in Civil Revision No. 514 of 2025, filed by the defendant Deepak Afle against Dharam Developers and Finvest Limited, through its authorised director Surendrasingh, and the State of Madhya Pradesh, after reserving it on 05.10.2026. The revision challenged the order dated 28.02.2025 of the Thirteenth District Judge, Indore, in MCA No. 129/2024, which had upheld the order dated 13.04.2024 of the Fifth Civil Judge, Senior Division, Indore, in MJC No. 834/2022.

The plaintiff company had filed RCSA No. 380-A/2017 for specific performance and perpetual injunction in respect of Survey No. 573/17, admeasuring 0.169 hectare in village Machal, Tehsil Depalpur, on the basis of an agreement to sell dated 24.04.2012, under which Rs. 10,00,000 had been paid. As the notice of the suit was returned unserved, it was published in the daily Nai Dunia under Order V Rule 20, and the defendant was proceeded against ex parte on 24.08.2017, with an ex parte judgment and decree passed on 08.08.2019.

The defendant claimed that he first learnt of the decree on receiving notice in the execution proceedings, in which he appeared through a lawyer on 27.11.2019. He said the lawyer never advised him to seek setting aside of the decree, that the Covid lockdown intervened, and that, when the lawyer shifted to Kerala in July 2022, a new lawyer advised him to move under Order IX Rule 13, which he did on 17.11.2022 along with an application under Section 5 of the Limitation Act. The trial court dismissed the delay application on 13.04.2024, relying on Lanka Venkateswarlu (D) By Lrs. v. State of A.P., finding his conduct grossly negligent and lacking bona fides, and the appellate court affirmed that view. The plaintiff's senior counsel argued that the explanation was insufficient and that findings of fact cannot be re-appreciated in a civil revision.

The High Court held that the explanation was supported by the fact that the defendant's lawyer had appeared in the execution and a new lawyer later filed the application, and that it rested on a lawyer's mistake, and observed that the length of delay is no matter and the acceptability of the explanation is the only criterion. Citing N. Balakrishnan v. M. Krishnamurthy, it held that, while superior courts do not normally disturb discretion on condonation, where delay has been refused the revisional court is free to consider the cause shown afresh.

The court noted that dismissal of the delay application would leave the defendant remediless against the ex parte decree and that the notice in the suit was served only by publication. It also noted that the period of delay included the Covid period, during which the Supreme Court, in Suo Motu Writ Petition (Civil) No. 3/2020, had excluded the period from 15.03.2020 to 28.03.2022 from the computation of limitation. Holding that the trial court had decided the Section 5 application in a highly technical manner and that the appellate court had not considered the irreparable loss to the defendant, it concluded that the delay ought to have been condoned by compensating the opposite party.

The court accordingly allowed the Section 5 application, set aside the orders dated 13.04.2024 and 28.02.2025 and condoned the delay on payment of costs of Rs. 50,000 by the defendant to the plaintiff. The civil revision was partly allowed, and the matter was remanded to the trial court with MJC No. 834/2022 restored to its original number, for deciding the Order IX Rule 13 application in accordance with law without being influenced by the observations in the order. The records were directed to be returned.

Appearances:

For the Petitioner: Shri Anuj Bhargava, Advocate.

For Respondent No. 1: Shri A.K. Sethi, Senior Advocate, along with Shri Harish Joshi, Advocate.

For Respondent No. 2 (State): Ms. Youkta Pahadiya, Panel Lawyer.

Case Title: Deepak Afle vs. Dharam Developers and Finvest Limited through its Authorised Director Surendrasingh and Others, Civil Revision No. 514 of 2025 (2026:MPHC-IND:28413)

[Read Order]