Kerala HC Reopens Partition Suit For Son After Lawyer Reported “No Instructions” And Court Gave No Notice

The petitioner, the ninth defendant in a partition suit, and his deceased father had filed a joint written statement relying on a registered Will.

After the petitioner’s evidence was closed in his absence, the court reopened the evidence, but on the next hearing date his counsel reported “no instructions.” The petitioner was set ex parte, and an ex parte decree followed.

He applied to set aside the decree within 19 days, explaining that an injury had prevented him from meeting his lawyer. The trial court dismissed the application, and the appellate court affirmed that dismissal.

The petitioner then sought relief under Article 227 of the Constitution.

Under Order IX Rule 13 of the Code of Civil Procedure, an ex parte decree may be set aside where the relevant conditions are met.

The court relied on Malkiat Singh v. Joginder Singh, which held that where counsel reports “no instructions” without the absent party being notified, the court should, in the interests of justice, allow the application to set aside the ex parte order and proceed from the stage at which counsel reported no instructions.

Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani similarly recognised that a fresh hearing notice may be required when counsel withdraws and the party is absent.

Y.P. Lele v. Maharashtra State Electricity Distribution Co. Ltd. held that proceeding ex parte after counsel’s withdrawal without notice was erroneous, and that the Explanation to Order XVII Rule 2 CPC does not apply where the defendant has led no evidence.

Jayalakshmi v. Avara and Deepak v. George Philip establish that there is no universal rule requiring notice in every case; the relevant concern is whether the party was informed by counsel or the court.

The record showed that the petitioner’s counsel reported “no instructions,” but there was no indication that the court asked whether the petitioner had been informed, and the court admittedly issued no notice to him.

The petitioner’s written statement raised a defence based on a Will, but the issue was not examined; neither side had adduced oral evidence, and the defendants’ documents had not been marked.

The court therefore treated the case as one in which the petitioner had not been shown to be at fault and the matter had been decided without consideration of the defence on its merits.

Applying Malkiat Singh, Tahil Ram and Y.P. Lele, it concluded that the application to set aside the decree ought to have been allowed.

It set aside the ex parte decree dated 31 October 2019 and directed the trial court to hear and dispose of the suit afresh.