Lawyer’s Failure To Advise On Remedy can be sufficient cause to condone delay, the Madhya Pradesh High Court has held, setting aside two orders that refused to condone a delay of 1093 days.
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Indore: The Madhya Pradesh High Court has partly allowed a civil revision and condoned a delay of 1093 days in filing an application under Order IX Rule 13 of the Code of Civil Procedure to set aside an ex parte decree for specific performance, holding that a litigant fully dependent on his lawyer should not suffer because the lawyer did not advise him to seek that remedy [Deepak Afle v. Dharam Developers and Finvest Limited and Others].
Justice Vinay Saraf of the Indore Bench delivered the order on October 8, 2026, after reserving it on October 5. The delay is condoned on payment of Rs 50,000 as costs to the plaintiff, and the application is remanded to the trial court to be decided on merits.
The case
Dharam Developers and Finvest Limited sued Deepak Afle in 2017 for specific performance of an agreement to sell land in village Machal, Tehsil Depalpur, Indore. The summons was returned unserved, the plaintiff’s application for service by newspaper publication was allowed, and the trial court proceeded ex parte against the defendant on August 24, 2017. An ex parte judgment and decree followed on August 8, 2019.
The defendant’s case is that he first learnt of the decree when he received notice in the execution proceedings in November 2019. He engaged a lawyer, who appeared in execution on November 27, 2019 but, he says, never advised him to apply to set aside the decree. When he approached the lawyer in July 2022, he learnt that the lawyer had permanently shifted to Kerala. A second lawyer advised him to file an Order IX Rule 13 application, which he filed on November 17, 2022 along with an application under Section 5 of the Limitation Act.
The plaintiff opposed the applications, contending that the defendant had avoided service, that he had knowledge of the decree on or before November 27, 2019, and that no cogent reason was given for a delay of three years and three months. The trial court dismissed the Section 5 application on April 13, 2024, finding his conduct grossly negligent and lacking in good faith, relying on Lanka Venkateswarlu v. State of A.P. The District Judge, Indore, upheld that order on February 28, 2025.
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What the Court said
The Court framed the sole question as whether the reason assigned for the delay was sufficient. It held that the explanation was supported by the fact that the earlier lawyer had appeared in execution and that a new lawyer later filed the application, and that the reason rested on a lawyer’s mistake. It observed that length of delay is not the test and that acceptability of the explanation is the only criterion.
A litigant is always dependent upon the Lawyer and act as per the advise of the Lawyer. The reason assigned in the application filed under Section 5 of the Limitation Act is based on the mistake of Lawyer. It is settled position of law that a litigant should not suffer for any mistake committed by the Lawyer.
On its power in revision, the Court said that while superior courts normally do not disturb findings on such explanations, where delay has been refused the revisional court is free to consider the cause shown afresh. It added that the rules of limitation are not meant to destroy the rights of parties but to ensure that they do not resort to dilatory tactics. The Court then held:
if a litigant is fully dependent upon a Lawyer and a Lawyer has committed mistake by not suggesting to the litigant to file any application for setting aside the ex parte judgment and decree, the defendant should not suffer for that. At least the application filed under Order IX Rule 13 of CPC should be considered and decided on merits.
The directions
The Court noted that if the delay was not condoned the defendant would be left without a remedy against the ex parte decree, and that the original suit notice had been served only by publication. It also took note that the period of delay overlapped with the COVID-19 period, for which the Supreme Court had excluded March 15, 2020 to March 28, 2022 from computation of limitation. It held that the trial court had decided the Section 5 application in a highly technical manner and that the first appellate court had not considered the irreparable loss to the defendant.
The Court set aside the orders dated April 13, 2024 and February 28, 2025, allowed the Section 5 application and condoned the delay subject to payment of Rs 50,000 as costs to the plaintiff. The Order IX Rule 13 application was restored to its original number and sent back to the trial court to be decided in accordance with law, without being influenced by the observations in the order.
Why the order matters
The order reinforces that condonation under Section 5 of the Limitation Act turns on the quality of the explanation and not the length of delay, and recognises that a litigant who has no legal knowledge and relies wholly on counsel may show sufficient cause where counsel failed to advise on the available remedy. The Court was dealing with a specific set of facts, including a lawyer who had left the State, and it did not decide the merits of the underlying suit.
The condition of costs also shows the balance the Court struck: the defendant gets his application heard on merits, while the decree-holder is compensated for the delay.
Case Title: Deepak Afle v. Dharam Developers and Finvest Limited through its Authorized Director Surendrasingh and Others [Civil Revision No. 514 of 2025]
Bench: Justice Vinay Saraf, Madhya Pradesh High Court (Indore Bench)
Date of Order: October 8, 2026
Appearances: Anuj Bhargava, Advocate, for the petitioner; Senior Advocate A.K. Sethi with Advocate Harish Joshi for respondent No. 1; Youkta Pahadiya, Panel Lawyer, for respondent No. 2 (State)