Case Note & Summary
The dispute arose from a civil suit for specific performance of an agreement dated January 29, 1986, for sale of 4840 sq. ft. of land in Madras city, filed by the respondent against the appellants. The matter reached the Supreme Court by special leave against an order of the High Court in a civil revision petition, challenging the refusal to set aside an ex-parte decree. The trial court decreed the suit ex-parte because the appellants' advocate had withdrawn his vakalatnama without notice to the client and without informing the appellants about non-cooperation. The appellants, upon learning of the ex-parte decree, filed an application to set it aside along with an application for condonation of delay of 40 days. The trial court dismissed both applications, refusing to condone the delay, and the High Court confirmed the dismissal in CRP No.306/94 by order dated February 14, 1994. The core legal questions were whether the 40-day delay in filing the application to set aside the ex-parte decree should be condoned, and whether the ex-parte decree should be set aside to afford the appellants an opportunity to contest the suit on merits. The judgment records that learned counsel for both sides were heard, but it does not detail the specific submissions. However, the Supreme Court's reasoning indicates that the appellants relied on the advocate's dereliction of duty—failure to inform the client by registered post and withdrawal of vakalatnama without notice—as the cause for their non-appearance and delay. The Supreme Court found that the advocate had indeed derelicted his duty by not informing the appellants and by withdrawing the vakalatnama without notice. The Court held that the appellants were well justified in filing the application with delay and that the delay of 40 days should be condoned. It noted that the trial court had set the appellants ex-parte and decreed the suit for specific performance without giving them an opportunity to cross-examine the respondent's witnesses or adduce evidence. To uphold the ex-parte decree would violate principles of natural justice. The Supreme Court allowed the appeal, condoned the delay, set aside the ex-parte decree, and directed the trial court to give the appellants an opportunity to cross-examine the witnesses examined by the respondent and to adduce evidence on their behalf. The trial court was further directed to dispose of the matter as expeditiously as possible, preferably within one year from the date of receipt of the order. No costs were awarded.
Headnote
A) Civil Procedure - Condonation of Delay - Sufficient Cause - Advocate's Dereliction of Duty - Not mentioned - The Supreme Court condoned the 40-day delay in filing the application to set aside the ex-parte decree because the appellants' advocate had failed to inform the client and had withdrawn vakalatnama without notice; the Court held that the appellants were well justified in filing the application with delay (Paras Not mentioned). B) Civil Procedure - Setting Aside Ex-parte Decree - Natural Justice - Opportunity to Defend - Not mentioned - The Supreme Court set aside the ex-parte decree for specific performance and directed the trial court to allow the appellants to cross-examine the respondent's witnesses and adduce evidence; the trial court was to dispose of the suit expeditiously, preferably within one year (Paras Not mentioned).
Issue of Consideration
Whether the 40-day delay in filing the application to set aside the ex-parte decree should be condoned and whether the ex-parte decree for specific performance should be set aside due to the advocate's dereliction of duty
Final Decision
Appeal allowed. Delay of 40 days condoned. Ex-parte decree set aside. Trial court directed to give opportunity to appellants to cross-examine respondent's witnesses and adduce evidence, and to dispose of the suit expeditiously, preferably within one year from the date of receipt of order. No costs.
Law Points
- Condonation of delay can be allowed where delay is caused by advocate's dereliction of duty and withdrawal of vakalatnama without notice
- Ex-parte decree should be set aside to afford opportunity to defend when party was not at fault
- Principles of natural justice require fair hearing before decreeing suit for specific performance
