Litigant Not to Suffer for Counsel’s Default: Restoration of Appeal and Condonation of Delay Under a Justice-Oriented Approach
1) Introduction
In Kabak Bhatt v. Ms Biki Shapiong (Gauhati High Court, 07-08-2026; 2026 GAU-AP 743), the petitioner invoked the High Court’s
supervisory jurisdiction under Article 227 of the Constitution of India to challenge concurrent orders that refused to restore an appeal
dismissed for default and declined to condone delay in seeking restoration.
The dispute arose out of a land ownership conflict between former spouses concerning two plots at Hollongi, Balijan Circle (Arunachal Pradesh).
After the village authority (Gaun Baura, Hollongi) passed an ex parte order on 24-10-2023 granting ownership rights to the respondent, the petitioner
filed a statutory appeal (First Appeal No. 05/2023). Though an interim status quo/stay order was granted on 04-12-2023, the appeal was later
dismissed for default on 09-08-2024 due to repeated non-appearance of the petitioner’s counsel. The petitioner sought restoration with a
123-day delay (IA No. 07/2025 under Order 41 Rule 19 CPC read with Section 151 CPC), but restoration was rejected by the Civil Judge
and that rejection was affirmed by the District Judge in a miscellaneous appeal.
The key issue before the High Court was whether courts below adopted an unduly technical approach—particularly by attributing counsel’s defaults to
the litigant and relying on prior non-appearances—when deciding restoration and delay condonation.
2) Summary of the Judgment
The High Court allowed the revision and:
- Set aside (i) the dismissal-for-default order dated 09.08.2024 in First Appeal No. 05/2023, (ii) the order dated 04.08.2025 dismissing IA No. 07/2025, and (iii) the appellate affirmance dated 18.05.2026 in Civil (Misc.) Appeal No. 2 of 2025.
- Condoned the delay of 123 days in filing the restoration application.
- Restored First Appeal No. 05/2023 for fresh adjudication on merits.
- Imposed costs of Rs. 5,000 payable to the DLSA, Papumpare, Yupia, reflecting a balancing of equity and procedural discipline.
- Directed both parties to appear before the Civil Judge (Senior Division), Yupia on 07.09.2026.
3) Analysis
A. Precedents Cited
The Court relied centrally on Rafiq and Anr Vs. Munshilal and Anr ((1981) 2 SCC 788), which articulates a pragmatic principle of the adversarial
system: once a litigant selects counsel, briefs them, and pays fees, it is unreasonable to expect the litigant to “watchdog” the advocate’s attendance.
The Supreme Court’s emphatic holding—an innocent party should not suffer injustice because their chosen advocate defaulted—was treated as the guiding
norm to evaluate restoration requests where the default is attributable to counsel rather than client.
The High Court drew support from the co-ordinate bench decision in Jonah Lalrempuia Vs. Lalhmuchhuaki (2025 Supreme (Gau) 700), which reiterates
that delay/absence issues must be approached justice-orientedly, and that litigants should not be made to bear the brunt of counsel’s lapses.
Jonah Lalrempuia, in turn, referred to S. Shivraj Reddy Vs. Raghuraj Reddy and Ors (2024 SCC OnLine SC 963) for the proposition that, ordinarily,
parties should not suffer for the advocate’s default/non-appearance.
This line of authority reinforced the High Court’s view that the lower courts’ approach—treating counsel’s repeated absences as disqualifying the
litigant from restoration—was inconsistent with the governing remedial philosophy.
The Court relied on Neelav Chaliha Vs. Ditul Das & Ors (2018 (4) GLT 1184), which clarifies an important procedural point:
when a matter is dismissed for non-prosecution, the applicant must satisfactorily explain the non-appearance on the very date of dismissal;
prior dates of absence are not the decisive focus if the court earlier did not dismiss the case on those dates.
Neelav Chaliha applied the ratio from Nazrul Islam Borbhuiya Vs. Yakub Ciddikie (2006 (3) GLT 828) and also recognized that
Section 151 CPC may be used to advance justice in appropriate restoration settings. This directly undermined the reasoning noted by the High Court
that the lower court had “also took into account the previous default” of counsel—an approach Neelav Chaliha characterizes as jurisdictionally flawed
in restoration analysis.
iv) Solim Manyu Vs. Benglum Manyu and N. Balakrishnan Vs. M. Krishnamurty
The Court noted that Solim Manyu Vs. Benglum Manyu, CRP/21(AP)/2025 and N. Balakrishnan Vs. M. Krishnamurty ((1998) 7 SCC 123)
would not “come in the way” of adopting a justice-oriented approach in the facts presented. This signals that even if those authorities were invoked
to stress diligence or to resist condonation, they do not displace the overriding principle that procedural discretion must be exercised to prevent
substantive injustice—particularly where default is credibly traced to counsel and the litigant acts upon discovering prejudice.
B. Legal Reasoning
-
Supervisory correction under Article 227:
The High Court treated the lower courts’ approach as warranting interference because the restoration/condonation discretion was exercised on
an improper footing—especially by placing weight on prior counsel defaults and not adopting the legally mandated, justice-oriented lens.
-
Fault attribution: litigant vs. counsel:
Accepting the petitioner’s case that he was unaware of the dismissal and counsel’s non-appearances (and that he acted after noticing respondent’s
activities on the land), the Court aligned with Rafiq and Anr Vs. Munshilal and Anr and Jonah Lalrempuia Vs. Lalhmuchhuaki to hold that
the litigant should not be effectively non-suited for counsel’s lapses.
-
Correct focal point for “sufficient cause” in default dismissal:
By referencing Neelav Chaliha Vs. Ditul Das & Ors, the Court signalled that the decisive explanation is for the date of dismissal,
and that earlier non-appearance—if earlier tolerated without dismissal—should not dominate the restoration analysis.
-
Balancing equity with procedural discipline via costs:
While granting restoration and condoning delay, the Court imposed costs of Rs. 5,000 payable to the DLSA. This reflects a calibrated remedy:
reopening the merits to avoid injustice, while acknowledging systemic cost of delay and discouraging casual prosecution.
C. Impact
-
Restoration jurisprudence in Arunachal Pradesh under the Arunachal Pradesh Civil Courts Act, 2021:
Though the appeal arose under section 15 (village authority order appeal), the High Court’s approach clarifies that once such appeals enter
the civil court system, restoration/condonation applications should be handled with mainstream CPC principles, tempered by justice-oriented
discretion.
-
Constraint on lower courts’ reliance on “past conduct”:
The judgment strengthens the proposition that restoration decisions should not be turned into punitive assessments of overall past conduct,
particularly when the decisive failure is counsel-related and the dismissal occurred on a specific date.
-
Encouragement of merits-based adjudication in land and customary-authority disputes:
By restoring the appeal against a village authority order that determined ownership rights ex parte, the judgment favours adjudication on merits,
which is especially significant where property rights and possession are contested.
-
Use of costs payable to DLSA:
The direction to deposit costs with the DLSA underscores an emerging remedial pattern: compensating for delay while supporting legal aid
institutions, and signalling that restoration is not “cost-free.”
4) Complex Concepts Simplified
- Article 227 (Supervisory jurisdiction)
-
A High Court power to supervise subordinate courts/tribunals to keep them within the bounds of lawful procedure and proper exercise of jurisdiction.
It is not a full “retrial,” but it can correct serious procedural/legal errors.
- Dismissal for default / non-prosecution
-
When a case is dismissed because the party (or their advocate) does not appear or does not pursue it, not because the merits were decided.
- Order 41 Rule 19 CPC
-
A provision enabling restoration of an appeal dismissed for default if the appellant shows sufficient cause for non-appearance.
- Section 151 CPC (Inherent powers)
-
Residual powers allowing courts to pass orders necessary to secure the ends of justice where the CPC does not expressly cover a situation.
- Condonation of delay
-
A court’s acceptance of an application filed after the limitation period, when sufficient cause is shown. The emphasis is often on preventing
injustice rather than punishing technical lapses—subject to fairness to the other side.
5) Conclusion
Kabak Bhatt v. Ms Biki Shapiong reaffirms and operationalizes a clear procedural principle: courts should not non-suit litigants for their counsel’s
defaults, and restoration/condonation discretion must be exercised with a justice-oriented approach. By setting aside three orders, condoning a
123-day delay, restoring the appeal for merits adjudication, and imposing measured costs, the Gauhati High Court balanced substantive justice with
procedural discipline—while cautioning against restoration refusals based on an overemphasis on prior counsel absences.