The Madhya Pradesh High Court imposed Rs 2,500 costs on a 77-year-old advocate after rejecting his plea to recall ex parte proceedings. The Court held he falsely claimed attendance during a hearing, stressing that litigants must approach courts with honesty, candour and clean hands.
The Madhya Pradesh High Court has imposed costs of Rs 2,500 on a 77-year-old practising advocate after finding no merit in his challenge to a trial court’s refusal to recall ex parte proceedings initiated against him. The High Court upheld the trial court’s conclusion that the lawyer had falsely claimed to have been present during a hearing despite evidence indicating otherwise.
In a judgment delivered on July 2, Justice Sandeep N. Bhatt dismissed the petition filed by the advocate observing that although courts generally adopt a liberal approach while considering applications seeking recall of ex parte proceedings, such relief cannot be granted to litigants who make inconsistent statements, fail to establish sufficient cause for their absence and do not approach the court with honesty.
The Court underlined the importance of candour in judicial proceedings and observed:
“It is always expected that the litigant should come with clean hands before the Court by disclosing every facts true and correct and also by producing all relevant material on record.”
The High Court further noted that the material placed before it suggested that the petitioner was “trying to play dilatory tactics” by delaying the progress of the suit instead of participating in the proceedings in a timely manner.
Background of the Dispute
The controversy arose from a civil suit pending before a trial court in which the petitioner himself was a defendant. During the course of the proceedings, he failed to appear before the trial court on the scheduled hearing dates in April, prompting the court to proceed against him ex parte.
An ex parte proceeding is initiated when a party fails to appear before the court despite being given an opportunity to participate. In such situations, the court may continue hearing the matter in the absence of that party and decide the case based on the available evidence. However, the Code of Civil Procedure (CPC) provides an opportunity to seek recall of such an order if the absent party is able to demonstrate a genuine and sufficient reason for non-appearance.
After the trial court ordered ex parte proceedings on April 13, the petitioner moved an application under Order IX Rule 7 of the Code of Civil Procedure on April 20.
Order IX Rule 7 enables a defendant against whom ex parte proceedings have been initiated to request the court to recall the order and permit participation in the proceedings, provided the defendant can show “good cause” for not appearing when the matter was called for hearing.
In his application before the trial court, the advocate claimed that he had actually attended court on April 13 and had sought time. According to him, he failed to properly mark his appearance because he was unfamiliar with the procedural formalities of signing the application and verifying the order sheet. As a result, his attendance was allegedly not recorded.
The trial court was not convinced by the explanation. While dismissing the application on May 4, the court noted that its order sheets clearly reflected the petitioner’s absence not only on April 13 but also on April 7. Significantly, the trial court also relied upon CCTV footage installed within the court premises, which did not support the petitioner’s claim that he had been present on the relevant date.
Finding that the advocate had falsely claimed attendance and had failed to provide any satisfactory explanation for his repeated absence, the trial court refused to recall the ex parte proceedings.
High Court’s Observations
Aggrieved by the trial court’s order, the advocate approached the High Court. Before the High Court, however, he adopted an altogether different explanation. Instead of asserting that he had attended court, he argued that he was unable to appear because he was a senior citizen suffering from old age-related health issues and had faced sudden medical difficulties.
He also submitted that his application under Order IX Rule 7 CPC had been filed within a week of the ex parte order and that the trial court ought to have afforded him another opportunity to contest the suit on merits.
The respondents strongly opposed the petition and highlighted the inconsistency in the petitioner’s stand. They pointed out that before the trial court, the advocate had maintained that he was physically present on April 13 but had failed to complete procedural formalities. Before the High Court, however, he claimed that he could not attend the hearing because of medical problems.
According to the respondents, these contradictory explanations undermined the credibility of the petitioner’s case and demonstrated that he had failed to establish any genuine reason for his absence.
After examining the record, the High Court held that the petitioner had failed to satisfy the legal requirement of demonstrating “good cause” for his non-appearance, which is a prerequisite for relief under Order IX Rule 7 CPC.
The Court agreed with the findings recorded by the trial court and held that there was neither any perversity nor any legal infirmity in its decision refusing to recall the ex parte proceedings. The Bench observed that the contradictory stands taken by the petitioner further weakened his case and justified dismissal of his plea.
While considering whether costs should be imposed, the High Court noted that the petitioner was not an ordinary litigant but a practising advocate, who was fully aware of legal procedures and obligations.
The Court observed:
“Considering the conduct of the petitioner and in view of the fact that the petitioner has made inconsistent statements in the pleadings and also tried to get undue advantage by way of such pleadings, this Court is of the opinion that heavy cost should be imposed on the petitioner, who is otherwise a practicing Lawyer, well aware about all requirement under the law and cannot be considered as illiterate person having no knowledge of law.”
The Court emphasised that members of the legal profession are expected to uphold the highest standards of fairness and honesty while approaching the courts, and inconsistent pleadings intended to secure procedural advantages cannot be condoned.
Consequently, the High Court dismissed the petition and imposed costs of Rs 2,500 on the petitioner. The Court directed him to deposit the amount with the High Court Bar Association, Indore, within seven days.
The petitioner was represented by Advocate Dheeraj Sharma, while Advocate Aditya Mishra appeared on behalf of the respondents.
Case Title: Divyaprakash v. Brijesh Kumar and Others
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