Counsel’s bona fide mistake constitutes sufficient cause for setting aside an ex parte order.

Ranjeet Narayan Haksar filed MJC No. 08/2009 under Section 307(5) of the Madhya Pradesh Municipal Corporation Act, 1956, seeking removal of alleged construction raised contrary to the sanctioned plan and municipal bye-laws by the appellant at House No. 1/2, Suraj Compound, Parsi Mohalla, Indore.

On 28 June 2010, the appellant and his counsel were absent, and the proceedings were conducted ex parte; the matter was finally decided against the appellant on 29 September 2010.

The appellant applied under Order IX Rule 13 CPC on 6 October 2010, contending that the junior advocate had mistakenly noted the date of another case, MJC No. 12/2010, also filed by the same petitioner and listed before the same Court, and consequently failed to appear in MJC No. 08/2009.

The Trial Court dismissed the Order IX Rule 13 application on 2 September 2024, holding that the explanation was not believable, leading to the present appeal.

Whether the appellant established “sufficient cause” for his non-appearance before the Trial Court on 28 June 2010 so as to justify setting aside the ex parte order under Order IX Rule 13 CPC.

Whether the Trial Court erred in disbelieving the appellant’s explanation that the non-appearance resulted from a bona fide mistake by the junior advocate who confused two cases listed before the same Court.

Whether the ex parte final order dated 29 September 2010 should be set aside and MJC No. 08/2009 restored to its original number.

The Court applied Order IX Rule 13 CPC, under which an ex parte decree or order may be set aside where the defendant demonstrates sufficient cause for non-appearance.

It also considered Section 307(5) of the Madhya Pradesh Municipal Corporation Act, 1956, under which the original petition concerning alleged unauthorised construction had been filed.

Relying on Parimal v. Veena alias Bharti, (2011) 3 SCC 545, the Court held that “sufficient cause” requires an adequate explanation showing that the party was not negligent, lacked bona fides, or was not acting diligently; the expression must be applied judiciously and with the objective of advancing substantial justice.

The Court further applied the principle that a litigant should not ordinarily suffer for a bona fide mistake of counsel, particularly where the mistake is supported by reliable evidence.

The Court found that two proceedings instituted by the same petitioner under Section 307(5) were pending before the same Court and were listed on the same date.

The junior advocate’s evidence was corroborated by the mistaken filing of an application prepared for MJC No. 08/2009 in MJC No. 12/2010, together with the Presiding Officer’s endorsement on that application.

This circumstance demonstrated that the advocate had genuinely confused the two matters and thereafter followed the dates of the wrong case.

The Trial Court materially erred by treating the mistaken filing in MJC No. 12/2010 as irrelevant, instead of considering it corroborative evidence of the asserted bona fide mistake.

Applying the liberal and justice-oriented standard governing “sufficient cause” under Parimal, the High Court held that the appellant had satisfactorily explained his non-appearance and had established absence of negligence or deliberate inaction.

It also set aside the ex parte final order dated 29 September 2010 and restored MJC No. 08/2009 to its original number for further consideration from the stage at which the proceedings had been conducted ex parte against the appellant.

No order as to costs was made, and the Trial Court record was directed to be returned with a copy of the judgment.