The Himachal Pradesh High Court has reaffirmed that the right to be heard is non-negotiable under the principles of natural justice, even when legal representation is unavailable due to an advocate strike. In a significant ruling, the Court set aside an appellate judgment rendered ex parte solely because the respondent’s counsel was absent during hearing, emphasizing that procedural fairness cannot be compromised under any circumstance.
Background & Facts
The Dispute
The dispute originated from a civil suit filed by Shiv Charan, the appellant, in Civil Suit No. 121/91 before the Court of Sub Judge, 1st Class-II, Palampur, Kangra, seeking declaration and permanent injunction against the State of Himachal Pradesh and another respondent concerning possession of land. The trial court, by judgment and decree dated 17.05.1999, partly decreed the suit and granted injunction restraining the respondents from interfering with the suit property.
Key Facts
- The appellant was granted injunction relief on 17.05.1999 by the trial court.
- The State of Himachal Pradesh filed an appeal before the District Judge, Kangra, as Civil Appeal No. 144-D/XIII-1999.
- On 22.08.2000, the District Judge allowed the appeal and set aside the trial court’s decree.
- The appellant was neither present nor represented by counsel on 22.08.2000.
- The District Judge recorded in para 6 of the judgment that advocates were on strike and no arguments were advanced by the respondent’s counsel.
- The appellant filed an application under Order 9, Rule 13 CPC on 22.05.2007 seeking to set aside the ex parte decree, which was dismissed on 02.12.2012.
- The appellant then filed First Appeal No. 39 of 2003 against the dismissal of Order 9, Rule 13 application, but withdrew it on 26.04.2007 with liberty to file an application under Order 41, Rule 21 CPC.
- The application under Order 41, Rule 21 CPC was filed on 22.05.2007 and dismissed by the District Judge on 14.01.2013.
- The present appeal was filed against the dismissal order dated 14.01.2013.
Procedural History
- 17.05.1999: Trial Court grants injunction in favor of appellant (Civil Suit No. 121/91)
- 22.08.2000: District Judge allows appeal and sets aside trial court decree; respondent not heard
- 24.04.2001: Appellant withdraws RSA No. 556 of 2000, citing non-maintainability
- 02.12.2012: Application under Order 9, Rule 13 CPC dismissed
- 26.04.2007: FAO No. 39 of 2003 withdrawn with liberty to file under Order 41, Rule 21 CPC
- 22.05.2007: Application under Order 41, Rule 21 CPC filed
- 14.01.2013: District Judge dismisses application under Order 41, Rule 21 CPC
- 14.01.2013: Order impugned in present appeal
- 07.03.2026: Appeal reserved
- 24.03.2026: Judgment delivered
Relief Sought
The appellant sought restoration of the appeal before the District Judge, setting aside the judgment dated 22.08.2000, and a direction for fresh hearing with opportunity to be heard.
The Legal Issue
The central question was whether an appellate court may proceed to decide an appeal on merits in the absence of both parties, citing an advocate strike, without violating the fundamental principle of audi alteram partem under Order 41, Rule 21 CPC and Section 151 CPC.
Arguments Presented
For the Appellant
Learned counsel contended that the appellate judgment dated 22.08.2000 was rendered without affording any opportunity of hearing to the appellant or his counsel, despite the absence being due to a general advocate strike. He argued that such a proceeding violated the cardinal principle of natural justice and that Order 41, Rule 21 CPC, read with Section 151 CPC, empowered the court to restore the appeal to rectify such a grave procedural defect.
For the Respondent
The Deputy Advocate General defended the order, arguing that the appellate court had proceeded on merits after noting the absence of counsel due to strike, and that the appellant had ample opportunity to appear or arrange representation. He submitted that the dismissal of the restoration application was justified as the appellant had delayed in seeking remedy.
The Court's Analysis
The Court examined the judgment dated 22.08.2000 and found that the District Judge explicitly recorded that no arguments were advanced by the respondent’s counsel due to an advocate strike. The Court held that an advocate strike, however widespread, cannot be a valid justification for denying a party the right to be heard.
"It was the duty of the learned First Appellate Court to provide the respondent (appellant herein) an effective opportunity to address arguments. The impugned order was, thus, passed in violation of the principles of natural justice in the absence of any effective/reasonable opportunity of hearing provided to the present appellant."
The Court emphasized that audi alteram partem is not a mere procedural formality but a constitutional and statutory imperative under the Code of Civil Procedure. The Court distinguished between procedural delays and substantive denial of hearing, holding that the latter cannot be condoned even if the party did not actively pursue remedies earlier.
The Court further observed that the appellate court’s decision to proceed ex parte under such circumstances amounted to a gross violation of Section 151 CPC, which empowers courts to act in the interest of justice. The Court rejected the argument that the appellant’s delay in filing the restoration application could override the fundamental right to a fair hearing.
The Verdict
The appeal was allowed. The order dated 14.01.2013 dismissing the application under Order 41, Rule 21 CPC was set aside. The judgment and decree dated 22.08.2000 of the District Judge was set aside. The District Judge, Kangra, was directed to decide the appeal afresh on merits after giving a reasonable opportunity of hearing to both parties. The matter was directed to be decided on or before 31.07.2026. Both parties were directed to appear before the District Judge on 20.04.2026. The records were to be sent back forthwith.
What This Means For Similar Cases
Right to Hearing Trumps Procedural Delays
- Practitioners must argue that any ex parte decree rendered without notice or hearing is void ab initio, regardless of delay in seeking restoration
- Delay cannot be invoked to deny relief when the core violation is breach of natural justice
- Applications under Order 41, Rule 21 CPC remain viable even after long delays if the defect is jurisdictional
Advocate Strike Is Not a Valid Ground for Ex Parte Decree
- Courts cannot use strikes, holidays, or administrative inconvenience as justification to bypass hearing requirements
- The burden lies on the court to adjourn or reschedule, not on the party to ensure presence
- Any judgment passed without hearing is liable to be set aside under Section 151 CPC
Procedural Fairness Is Non-Negotiable
- Order 41, Rule 21 CPC is not a mere technical remedy - it is a safeguard against arbitrary adjudication
- Courts must proactively ensure both parties are heard, even if counsel is absent
- Failure to do so renders the entire proceeding void and subject to restoration under inherent powers
