Setting Defendant Ex Parte Despite Filed Vakalat Is Impermissible: Andhra Pradesh High Court

The Andhra Pradesh High Court held that a trial court cannot set a defendant ex parte for non-filing of a written statement once counsel has filed a vakalat; the correct course is to forfeit the right to file the written statement and proceed. Costs of Rs. 25,000 were imposed on the defendant in a suit pending since 2016.

Justice Subba Reddy Satti of the High Court of Andhra Pradesh at Amaravati, sitting singly, has held that once an advocate files a vakalat on behalf of a defendant, the trial court cannot set that defendant ex parte merely because a written statement has not been filed within the stipulated time. The proper procedural course under Order VIII Rule 10 of the Code of Civil Procedure, 1908 is to forfeit the defendant's right to file a written statement and proceed with the suit — not to treat the defendant as if he had never appeared. The ruling arose from a Civil Revision Petition challenging a 2022 docket order of the III Additional District Judge-cum-Family Court at Srikakulam, and was pronounced on 16 June 2026.

The Suit and the Ex Parte Order

The underlying suit, O.S. No. 32 of 2016, was filed before the III Additional District Judge-cum-Family Court, Srikakulam by two plaintiffs. They sought a declaration that three registered documents dated 11 May 2012, executed by defendant No. 1 (Boyina Govinda Rajulu) in favour of defendants 2 and 3, were null, void and unenforceable. They also sought specific performance of an agreement of sale, and in the alternative, refund of advance money and recovery of compensation amounting to Rs. 1,00,00,000.

Defendant No. 1 filed a vakalat through counsel and on 22 August 2016 sought an extension of time to file his written statement. The trial court granted the extension until 29 August 2016. On that date, the written statement had still not been filed. The trial court recorded in its docket: “Written statement by D1 not filed. D1 called absent and set exparte.” Defendant No. 1 was accordingly set ex parte on 29 August 2016.

Issues were framed on 4 July 2017. Defendant No. 2 subsequently died; the suit against her initially abated, but her legal representative was later brought on record. The trial did not commence in the years that followed.

The Application to Set Aside the Ex Parte Order

In 2021, defendant No. 1 filed I.A. No. 19 of 2021 under Order IX Rule 7 CPC, praying to set aside the ex parte order of 29 August 2016. In his supporting affidavit, he stated that the suit had been posted to 19 September 2019 for his appearance, and to 3 January 2020 for filing of the written statement, and that he could not appear because he was suffering from liver disease and had undergone liver transplantation surgery.

Plaintiff No. 2, the revision petitioner before the High Court, filed a counter-affidavit. She pointed out that defendant No. 1 had filed an application on 22 August 2016 seeking extension of time; that the suit was posted to 29 August 2016, on which date he was set ex parte; that the time for filing the written statement had elapsed in 2016; and that no medical record was produced. She prayed for dismissal of the application.

The trial court allowed I.A. No. 19 of 2021 by a docket order dated 30 March 2022, setting aside the ex parte order and accepting the written statement of defendant No. 1. No reasons were assigned in the docket order. Plaintiff No. 2 obtained a certified copy of the order in July 2022 and filed the present Civil Revision Petition in December 2022 under Article 227 of the Constitution of India.

The Procedural Framework the High Court Examined

Justice Subba Reddy Satti called for the entire docket proceedings in O.S. No. 32 of 2016 through the Registry and placed a printout before the Court. The Court then examined the interplay of three provisions of the CPC.

Order IX Rule 6(1)(a) CPC permits a court to make an ex parte order when the defendant fails to appear after due service of summons. The Court noted that this provision addresses the situation where a defendant has not appeared at all. Once an advocate appears and files a vakalat, however, the situation changes entirely.

Order III Rule 4(2) CPC provides that a vakalat filed in court continues to be in force until it is terminated by the court with leave, or until the client or pleader dies, or until all proceedings in the suit end. The Court read this to mean that an advocate who has filed a vakalat continues to represent the party unless the court formally terminates the engagement. The practice sometimes seen in civil courts — where advocates, when not in contact with their client, merely endorse a petition to issue notice to the party without the vakalat being formally terminated — was specifically noted by the Court as not being in accordance with the CPC scheme.

Order VIII Rule 10 CPC then becomes the operative provision. It provides that where a party from whom a written statement is required fails to present it within the permitted time, the court “shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit.” The Court read this conjunctively with Order III Rule 4(2): once a vakalat is filed and the defendant's advocate continues to be on record, the consequence of non-filing of a written statement is governed by Order VIII Rule 10, not by the ex parte provisions of Order IX.

The conclusion was direct. In the docket order of 29 August 2016, defendant No. 1's advocate had already appeared and had in fact sought an extension of time. Setting defendant No. 1 ex parte in those circumstances — without forfeiting the right to file the written statement under Order VIII Rule 10 — was contrary to the scheme of the CPC. The Court invoked the Latin maxim Actus Curiae Neminem Gravabit: an act of the court shall prejudice no one.

Why the Trial Court's Ultimate Order Was Not Disturbed

Having found that the original ex parte order was itself procedurally impermissible, the High Court turned to whether the revision should be allowed to interfere with the trial court's order dated 30 March 2022 that set aside that ex parte order.

The Court acknowledged that the petitioner's argument — that no reasons were assigned by the trial court — appeared to have merit on its face. However, the Court also noted that procedural laws are handmaidens of justice. Referring to the Supreme Court's observations in Anvitha Auto Works v. Aroush Motors (2026 SCCR 45), the Court noted that the object of procedural rules is to advance the cause of justice and not to thwart it, and that when substantial justice is at stake, technicalities must give way.

The Court also observed that defendant No. 1's affidavit in support of I.A. No. 19 of 2021 contained factually incorrect averments in paragraphs 2 and 3. This went to his conduct. Even so, the Court was not inclined to remand the matter to the trial court for a fresh order, reasoning that doing so would only further delay a suit that had been pending since 2016 with no trial commenced in ten years.

The petitioner's reliance on Desh Raj v. Balkishan (D) through Proposed LR Ms. Rohini was found inapplicable on the facts.

The written statement had been filed and accepted, and sending the matter back would add further delay without yielding any different outcome given the underlying procedural flaw in the original ex parte order. The Court declined to interfere with or modify the order under revision.

Costs and Directions to Expedite Trial

While not interfering with the trial court's substantive order, the High Court held that the trial court ought to have imposed costs on defendant No. 1, given the principle that a person at fault shall not be rewarded without compensating the adversary. The High Court imposed those costs itself.

Respondent No. 1 (defendant No. 1 in the suit), Boyina Govinda Rajulu, was directed to pay costs of Rs. 25,000 to plaintiff No. 2 (the revision petitioner, Vyasyaraju Maheswara Rao) within four weeks from the date of the order and to file the receipt before the trial court. If plaintiff No. 2 declines to receive the costs, defendant No. 1 is to pay the amount to the District Legal Services Authority, Srikakulam District, and file a memo before the trial court.

Given that the suit was of the year 2016, the High Court directed the trial court to expedite the trial in accordance with the circular issued by the High Court vide R.O.C. No. 560/OP/CELL/2022 dated 23 November 2022 and to dispose of the suit as expeditiously as possible in accordance with law.

Outcome

Civil Revision Petition No. 19 of 2023 was disposed of on 16 June 2026. The docket order dated 30 March 2022 of the III Additional District Judge-cum-Family Court, Srikakulam in I.A. No. 19 of 2021 in O.S. No. 32 of 2016 was neither modified nor set aside. Respondent No. 1 was directed to pay costs of Rs. 25,000 to the petitioner within four weeks, failing which to pay the amount to the District Legal Services Authority, Srikakulam. The trial court was directed to expedite trial. All pending miscellaneous applications in the Civil Revision Petition were closed.