Safiya Malik

The High Court of Judicature at Madras Division Bench of Justices S.M. Subramaniam and Mohammed Shaffiq set aside a trial court order dismissing a plea to vacate an ex-parte decree in a defamation suit arising from allegedly defamatory videos circulated on YouTube. Stating that a litigant’s interest must not be prejudiced by the mistakes of counsel, the Court observed that ex-parte decrees should be passed only in exceptional cases showing complete indifference. It further noted that a lenient view is generally warranted in such matters and restored the suit, directing the trial court to expedite its disposal.

The matter arose from a civil suit filed by the plaintiff alleging that the defendant had published and circulated defamatory content on YouTube and other social media platforms, thereby damaging the plaintiff’s reputation and public image. The plaintiff sought damages against the defendant and impleaded the social media platform as a formal party. Upon receipt of summons, the defendant engaged legal counsel and entered appearance in the suit proceedings.

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Despite initial participation, the defendant’s counsel failed to appear before the trial court on subsequent hearing dates. Consequently, the trial court set the defendant ex parte and later passed an ex-parte decree. The defendant then filed an application to set aside the ex-parte decree, accompanied by a written statement seeking an opportunity to contest the matter on merits.

In the supporting affidavit, the defendant claimed that he had not received summons in the suit. The trial court found this statement to be incorrect and inconsistent with the record, noting that the defendant had already entered appearance through counsel. Based on this observation and the defendant’s repeated absence, the trial court dismissed the application to set aside the ex-parte decree.

Before the appellate court, the defendant contended that the non-appearance was unintentional and occurred solely due to the lapse of his counsel, arguing that he should not be penalized for the advocate’s default. He maintained that he was prepared to proceed without delay and cooperate fully in the trial. The plaintiff opposed the appeal, asserting that multiple opportunities had already been granted and that the defendant’s conduct reflected negligence.

The appellate bench examined the pleadings, the conduct of the parties, and the reasoning adopted by the trial court. The record showed that service of summons had been effected, that the defendant’s counsel had represented him initially, and that the failure to appear led directly to the ex-parte proceedings

The Division Bench stated that “the conduct of the appellant, engaging a lawyer and thereafter remaining ex-parte, would indicate that he was watching the proceedings carefully.” The Court noted that the Trial Court’s observation that the affidavit contained contradictory statements was correct, but it stressed that procedural lapses by counsel must be distinguished from deliberate default.

The Bench recorded that, “The mistake or error committed by a lawyer need not affect the interest of the litigants or the merits involved in the case.” The judges added that this principle formed the basis of the courts’ consistent approach to taking a lenient view when dealing with applications to set aside ex-parte decrees. However, they also clarified that such leniency could not extend to cases where the parties acted with complete indifference.

The Court observed, “Only in exceptional cases where the conduct of the parties is totally indifferent, ex-parte decrees are normally passed.” In the present matter, the Bench found that the appellant had engaged a lawyer and had been defending the case, but the counsel’s repeated absence had resulted in the decree. It therefore held that this was not a situation warranting denial of an opportunity to defend.

The Bench stated, “The service of summons or notice is a matter of record, which can be verified by the Court, irrespective of the statement made by either of the parties.” Consequently, the Bench found that the affidavit error did not constitute deliberate misrepresentation.

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The Bench stated, “The learned counsel for the appellant made a submission that in the event of providing an opportunity to the appellant, he will not seek any unnecessary adjournment or make any attempt to prolong or protract the suit proceedings.” While the appellant’s counsel requested that the Court fix a time limit for disposal, the judges held that it would be inappropriate to impose such a schedule, as the matter rested within the Trial Court’s discretion. However, they requested the lower court to expedite the trial to ensure prompt adjudication.

The Court held, “In view of the facts and circumstances, the order impugned dated 27.03.2024 made in A.No.1635 of 2024 in CS.No.127 of 2022 is set aside and the suit in CS.No.127 of 2022 is restored. Consequently, the Original Side Appeal stands allowed. No costs. The connected miscellaneous petitions, if any, are closed.” The Court also noted that while it could not fix a specific time limit for disposal, the Trial Court was “requested to expedite the suit.”

Advocates Representing the Parties:
For the Appellant: Mr. S. Kalyana Raman for Mr. R. S. Mangala Kumar
For the Respondent: Mr. V. S. Senthil Kumar for R1

Case Title: Joe Micheal Praveen v. Apsara Reddy and Another
Case Number: OSA No. 323 of 2025
Bench: Justice S.M. Subramaniam and Justice Mohammed Shaffiq