Order 41 Rule 21 CPC: When can an ex-parte appeal be reheard?

The Madhya Pradesh High Court’s order dated 15 January 2026 in MCC No. 2808 of 2025 (Dayaram @ Dayla (Deceased) through LRs Anter Singh & Ors. v. Smt. Raju Bai & Ors.) is not a decision on land rights, partition, or succession in the usual sense. It is, instead, a decision about something more foundational: the integrity of hearing itself, and the uneasy space where procedural discipline meets human fallibility.

At the heart of this matter lies a second appeal (Second Appeal No. 105/2005) which had culminated in an ex-parte judgment and decree dated 15 April 2025. The respondents in that second appeal, who later became applicants in the present Misc. Civil Case, approached the Court under Order 41 Rule 21 of the Code of Civil Procedure seeking rehearing. Their plea was direct: they had engaged counsel, they believed they were being represented, but their counsel stopped appearing after 14 January 2016. The appeal moved forward over the years, and ultimately, on 24 February 2025, the High Court heard the appellants in the absence of the respondents. The ex-parte decision followed.

To understand why such an order matters, one must briefly locate the litigation’s origin. The dispute traces back to a civil suit for declaration of title and partition (Civil Suit No. 26A/1998). The trial court decided the suit, and the first appellate court in RCA No. 2A/2002 modified the trial court’s decree, holding that Dayal and Jairam had four sisters and that, under the Hindu Succession Act, 1956 and the M.P. Land Revenue Code, 1959, those sisters too were entitled to shares in the suit land. This recalibration reduced the plaintiffs’ share to 1/6th. The plaintiffs then carried the matter further to the High Court in second appeal.

But the High Court’s order of January 2026 is not about which heir gets what fraction. It is about whether the respondents (now applicants in MCC) should be allowed to be heard at all, despite their absence when the appeal was finally taken up. That is a question that appears procedural, but in truth is deeply moral. Courts do not merely adjudicate disputes; they also decide what kind of system justice is meant to be.

The applicants sought condonation of delay as well: an 86-day delay in filing their rehearing application. The Court condoned it. This itself reflects a quiet judicial realism: that procedural timelines, though important, are not an end in themselves. They are tools meant to serve adjudication, not to extinguish it.

The main argument of the applicants was that the default was not theirs. They had engaged a lawyer, and it was that lawyer who failed to appear and failed to keep them informed. In such situations, the law asks the Court to look for “sufficient cause” which is not in a mechanical sense, but in a manner that respects both the need for finality and the need for fairness.

The respondents opposed the application by arguing that the applicants were not innocent spectators. They pointed to execution proceedings initiated after the ex-parte decree, claiming that the applicants participated before the Tehsildar and therefore had knowledge of the High Court’s judgment by May 2025. From this, the respondents urged that the applicants were approaching the Court belatedly and without clean hands.

This is where the order becomes intellectually interesting. The Court did not treat “knowledge of the decree” as the decisive factor. Instead, it framed the real inquiry correctly: Order 41 Rule 21 concerns absence at the time the appeal was called for hearing, and the reasons for that absence. Whether the applicants later became aware of the ex-parte order, and whether they contested execution proceedings, may raise questions of diligence. But it does not automatically answer the core question which is why were they not represented when the matter was heard?

In examining the record, the Court found something significant: after the respondents’ counsel stopped appearing, there was no material to show that the Court issued any SPC (special notice/process) to the respondents. The appeal had been listed multiple times over the years, but no special steps were shown to have been taken to alert the party when representation had effectively ceased. In that context, the applicants’ plea that they believed their counsel was handling the matter did not appear implausible to the hon’ble court.

The High Court’s reasoning is rooted in a principle that has repeatedly surfaced in Indian jurisprudence: a litigant should not ordinarily be punished for the fault of their advocate. The Court relied on the Supreme Court’s decision in Rafiq v. Munshilal (AIR 1981 SC 1400), which recognises a practical truth about litigation which is that once a party has chosen counsel, briefed them, and paid fees, the party is entitled to assume that counsel will attend hearings. The party is not expected to become a “watchdog” of the advocate. The Court also relied on Ram Kumar Gupta v. Har Prasad (2010 AIR SCW 766), reiterating that justice should not be defeated merely because representation failed at the crucial moment.

This line of reasoning does not mean that courts will indefinitely excuse negligence. But it does mean that the system must distinguish between deliberate abandonment by a litigant and a litigant’s reasonable reliance on counsel. If courts treat every non-appearance as intentional, the legal process becomes a trap where procedure punishes the uninformed more than it disciplines the negligent. The law, after all, is not merely a set of rules; it is a set of assumptions about human behaviour. And one of those assumptions is that ordinary litigants cannot live inside court calendars.

The High Court ultimately allowed the application under Order 41 Rule 21 CPC and directed that the second appeal be listed for rehearing. In effect, the ex-parte judgment dated 15 April 2025 stands reopened not because the merits were found wrong, but because the hearing was found incomplete in a way the law cannot comfortably endorse.

At the same time, the Court imposed costs of ₹10,000 payable to the respondents. This is important. The order is not indulgent; it is balanced. Costs operate as a signal that while rehearing is granted to prevent injustice, the other side must not be made to suffer without consequence for delay and disruption. Justice is not only about giving someone a second chance; it is also about acknowledging the burden placed on the opponent by that second chance.

In the end, this order reminds us of a simple but profound idea: courts do not exist merely to deliver outcomes, but to deliver outcomes through a process that is recognisably fair. An ex-parte decree may be lawful, yet still sit uneasily with the conscience of adjudication when absence is not clearly voluntary. The High Court’s decision to restore the appeal for rehearing is a reaffirmation that procedure is meant to protect justice, not replace it.

Sometimes, the most consequential decisions are not those that declare who wins the property, but those that decide whether the losing party was ever truly heard. Basically, justice should not only be done but also be seen to be done.