ANIRUDH SINGH KATOCH vs NEELAM PARIHAR

UKHC010098042021

2026:UHC:7848
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON’BLE JUSTICE SRI MANOJ KUMAR TIWARI

Writ Petition Misc. Single No. 1641 of 2021

01 September, 2026



Anirudh Singh Katoch & another --Petitioners

Versus

Neelam Parihar & others --Respondents


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Presence:-
There is no representation for the petitioners.

Mr. P.C. Maulekhi, Advocate for respondent nos. 1 &
2.

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Petitioners have challenged the order dated
23.03.2021, passed by learned Second Additional District
Judge, Nainital in Misc. Case No. 18/2020. By the said
order, ex-parte decree passed in favour of petitioners, was
set aside and Misc. Case No. 47 of 2007 (Anirudh Katoch
v Ashok Singh and others) was restored to its original
number, subject to payment of cost of Rs.10,000/-.

2. The ground taken by respondent nos. 1 & 2 in
their application filed under Order 9 Rule 13 CPC was
that they are senior citizens, who are permanent resident
of Jammu in State of Jammu & Kashmir, Respondent
No.-2 was earlier serving in Jammu Medical College and
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retired in June, 2002 and thereafter he is employed in
some other hospital in Jammu and Respondent No.-1 is
his wife, who is old and ailing; it was not possible for
them to visit Nainital on every date fixed in the matter,
therefore, they engaged a lawyer, who assured them that
he will intimate them whenever their presence is needed
in Court, however, due to negligence on the part of lawyer
in attending to the case, it was decided ex-parte against
them.

3. Learned Additional District Judge allowed the
application filed under Order 9 Rule 13 CPC by
respondent nos. 1 & 2 by holding that a litigant should
not be made to suffer due to negligence on the part of his

lawyer.
4. This Court do not find any reason to interfere
with the impugned order. Hon’ble Supreme Court in the
case of Rafiq v. Munshilal, reported as (1981) 2 SCC 788
has held as follows:-
“3. The disturbing feature of the case is that under our
present adversary legal system where the parties generally appear
through their advocates, the obligation of the parties is to select his
advocate, brief him, pay the fees demanded by him and then trust
the learned Advocate to do the rest of the things. The party may be
a villager or may belong to a rural area and may have no
knowledge of the court's procedure. After engaging a lawyer, the
party may remain supremely confident that the lawyer will look
after his interest. At the time of the hearing of the appeal, the
personal appearance of the party is not only not required but hardly
useful. Therefore, the party having done everything in his power to
effectively participate in the proceedings can rest assured that he
has neither to go to the High Court to inquire as to what is
happening in the High Court with regard to his appeal nor is he to
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act as a watchdog of the advocate that the latter appears in the
matter when it is listed. It is no part of his job. Mr A.K. Sanghi
stated that a practice has grown up in the High Court of Allahabad
amongst the lawyers that they remain absent when they do not like
a particular Bench. Maybe, we do not know, he is better informed
in this matter. Ignorance in this behalf is our bliss. Even if we do
not put our seal of imprimatur on the alleged practice by dismissing
this matter which may discourage such a tendency, would it not
bring justice delivery system into disrepute. What is the fault of the
party who having done everything in his power expected of him
would suffer because of the default of his advocate. If we reject
this appeal, as Mr A.K. Sanghi invited us to do, the only one who
would suffer would not be the lawyer who did not appear but the
party whose interest he represented. The problem that agitates us is
whether it is proper that the party should suffer for the inaction,
deliberate omission, or misdemeanour of his agent. The answer
obviously is in the negative. Maybe that the learned Advocate
absented himself deliberately or intentionally. We have no material
for ascertaining that aspect of the matter. We say nothing more on
that aspect of the matter. However, we cannot be a party to an
innocent party suffering injustice merely because his chosen
advocate defaulted. Therefore, we allow this appeal, set aside the
order of the High Court both dismissing the appeal and refusing to
recall that order. We direct that the appeal be restored to its original
number in the High Court and be disposed of according to law. If
there is a stay of dispossession it will continue till the disposal of
the matter by the High Court. There remains the question as to who
shall pay the costs of the respondent here. As we feel that the party
is not responsible because he has done whatever was possible and
was in his power to do, the costs amounting to Rs 200 should be
recovered from the advocate who absented himself. The right to
execute that order is reserved with the party represented by Mr
.
A.K. Sanghi”

5. Similarly, in the case of Bank of India v.
Mehta Brothers, reported as AIR 1981 J&K 95, Full
Bench of Jammu & Kashmir High Court held as under:-
“4-A. The principal, question before us is whether a litigant is
responsible for the negligence of his counsel. A number of
decisions were cited before us during the course of argument but
that directly in point is the one reported in Firm of J.E. Billimoria
and Sons v. Gopinath Sunderlal Bhargao; (AIR 1938 Nag 370). In
that case the defendant and his counsel were both absent when the
case was called on 1-11-1935 at 1.30 P.M. though they had been
present at every hearing till then. The trial Court proceeded ex
parte and after examining the plaintiff and his two witnesses
passed, an ex parte decree. The defendant's counsel appeared a few
minutes later but he was told that the judgment had been already
delivered ex parte. The defendant applied to have this order set
aside but the trial Court rejected the application on the ground that
no sufficient cause was shown. The defendant applied in revision.
The question arose whether the defendant could be held
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responsible for the negligence of his counsel assuming that the
counsel was negligent. Dealing with this question the learned
Judge observed:
“I do not deny that cases may arise when he is, but I do not think it
is neither possible or desirable to lay down any hard and fast rule.
Speaking generally, I do not think a party ought to be penalized in
this drastic fashion unless there has been remissness on his part.
Apart from the general undesirability of having litigation terminate
in this unsatisfactory manner, it must be remembered that the
provisions of the Code speak throughout of the absence of the party
himself and not of that of his counsel and that therefore attention
must in., the first instance be concentrated on the conduct of the
party and not merely on that of the counsel: Sec. O. 9, Rr. 6, 8 and
13 and O. 41, R. 17. What then is the duty of a litigant in this
respect? If he cannot be present himself when his case is called on
for hearing, he must of course make adequate provision for his
proper representation by some agency. If he employs counsel for
this purpose he must ensure that the person he employs undertakes
to be present when the case is called for that there is somebody else
there to represent him. This means that he must pay counsel
adequately or employ others who will be there to assist him. If he
does that then he has done all that the law can reasonably expect of
him. If in spite of that counsel does not appear, I hardly think the
litigant can be held responsible. After all, he is not allowed to
employ anybody he chooses. He is forced to confine himself to a
special class of persons whom the Courts and the State hold out to
the general public as specially honest, competent, reliable and
responsible, and who for that reason have been given an exclusive
monopoly to practice in Courts of justice. If the person selected
behaves in an irresponsible manner the remedy is for those
responsible for placing him in this privileged position to punish
him and to ensure as far as may be that the public at large are not
left, to the mercy of his irresponsibility or incompetency a second
time. It is manifestly unjust in these circumstances to blame the
litigant.”

6. Since the view taken by learned Additional
District judge is in consonance with settled law on the
point, therefore, there is no scope for interference in the
matter. The writ petition fails and is dismissed. There
shall be no order as to costs.




(Manoj Kumar Tiwari, J.)
01 September, 2026
Navin

Digitally signed by NAVEEN CHANDRA
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e4403d3c0a15, postalCode=263001,
st=UTTARAKHAND,
serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095C6ED9A86DAAB21CE5, cn=NAVEEN CHANDRA
Date: 2026.09.03 10:06:51 +05'30'
NAVEEN CHANDRA
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