Trial Court Cannot Pass Ex Parte Decree As If It Were Contested Merits Without Notice To Party Upon Counsel’s Withdrawal: Andhra Pradesh High Court

"Once a party engages an Advocate, the latter is under obligation to pursue the proceedings, on behalf of his client. If for any reason, he does not find it feasible to continue his appearance or assistance, he is required to put the client on notice, and inform the same to the Court." Andhra Pradesh High Court, in a significant ruling dated September 16, 2026, held that a trial court acts in violation of procedural fairness when it proceeds to decide a suit on merits despite the absence of a party, particularly when the party's counsel has reported "no instructions" without issuing prior notice to the client.

 A division bench of Justice D. Ramesh and Justice A. Hari Haranadha Sarma observed that the trial court must issue a fresh notice to the party in such circumstances, emphasizing that "proceeding further without notice to the said party by the Court, is found as denial of fair opportunity."

The appeal arose from a matrimonial dispute where the trial court had granted a decree of divorce in favor of the husband under the Indian Divorce Act, 1869. Although the wife had filed a counter, the trial court treated the matter as a contested proceeding, recording the cross-examination and the wife’s evidence as "Nil" after her counsel reported no instructions. The appellant-wife challenged the decree, contending that the procedure adopted by the trial court effectively deprived her of the remedy to set aside an ex parte decree under Order IX Rule 13 of the Code of Civil Procedure (CPC).

The primary legal issue before the court was whether the trial court was justified in deciding the suit on merits as a contested matter, despite the absence of the defendant and the withdrawal of her counsel, rather than resorting to ex parte procedure under Order XVII Rule 2 and Order IX of the CPC. The court also examined the obligations of an advocate and the trial court's duty to ensure service of notice when a party is left unrepresented.

Court Explains Distinction Between Ex Parte and Contested Proceedings

The High Court clarified that the procedure adopted by the trial court was fundamentally flawed. Under Order XVII Rule 2 of the CPC, if a party fails to appear, the court is obligated to proceed under Order IX, which mandates ex parte proceedings. By recording the proceedings as if they were contested, the trial court incorrectly closed evidence and delivered a judgment on merits. The bench noted that while the final outcome of an ex parte disposal and a contested disposal might appear similar, the procedural rights and remedies available to a party, such as the right to seek setting aside of an ex parte decree, are significantly affected by the court's characterization of the proceedings.

Mandatory Duty of Courts Upon Counsel's Withdrawal

Referring to established precedents like Malkiat Singh v. Joginder Singh and Thanneru Venkataiah v. Vadlamudi Kasaiah, the High Court underscored that when an advocate reports "no instructions," the court cannot assume the client is aware of the situation. The bench observed that the obligation of an advocate under Order III of the CPC subsists until the termination of proceedings or until the client is properly notified. Consequently, the trial court’s failure to issue a fresh notice to the appellant after her counsel withdrew constituted a clear denial of the principles of natural justice.

"There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when [the counsel] withdrew from the case, the interests of justice required, that a fresh notice for actual date of hearing should have been sent to the parties."

The High Court rejected the respondent's argument regarding his subsequent remarriage, noting that the validity of such acts is a separate legal matter to be addressed by the appropriate forum. Finding that the trial court failed to follow the mandatory procedural safeguards, the bench set aside the order and decree dated November 29, 2023. The Court restored the original petition and directed the trial court to proceed from the stage of cross-examination of the petitioner, strictly ensuring that a fair opportunity is provided to both parties to contest the matter on its merits.

Date of Decision: 16 September 2026