* HIGH COURT OF DELHI : NEW DELHI
FAO No.239/1992 & CM No. 3265/1992
% Judgment reserved on: 27th October, 2009
Judgment delivered on: 5th November, 2009
1. M/s Dubey Builders & Industries,
2, Kanal Raod, Jammu,
Through its partner Sh. Pawan Kumar.
2. Shri Bipan Sharma
S/o Sh. Nek Ram,
R/o 61/C/CD, Gandhi Nagar,
Jammu.
....Appellants
Through: Mr. Peeyoosh Kalra,
Adv.
Versus
Sh. Birdh Raj Bhandari,
S/o Late Balwant Raj Bhandari,
R/o 16, Netaji Subhash Raod,
Calcutta.
....Respondent.
Through: Mr. Rana Mukharjee
with Mr. I. Ghosh and Sandeep
Mahapatra, Advs.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
FAO No.239/1992 Page 1 of 15
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
In this appeal, there is challenge to order dated 21st November, 1992, passed by Additional District Judge, Delhi. Vide impugned order, application under Order 9 rule 13 of the Code of Civil Procedure (for short as „Code‟) filed by appellants was dismissed.
2. Respondent herein, filed suit for possession and mandatory injunction against the appellants. Initially, suit was contested by appellants who filed their written statements. On 20th November, 1991, matter was adjourned to 6th February, 1992 for arguments on injunction application as well as for documents, admission/denial and issues. On that day only counsel for respondent appeared, while none was present on behalf of appellants. After waiting till 2.30 P.M, FAO No.239/1992 Page 2 of 15 appellants were proceeded ex parte. Vide judgment, dated 30th March, 1992, suit was decreed ex parte, in favour of respondent. On 6th May, 1992, appellants filed application under Order 9 Rule 13 of the Code, for setting aside ex parte decree dated 30th March, 1992. After recording evidence, trial court dismissed the application.
3. It is contended by learned counsel for appellants that appellants are resident of Jammu and their earlier counsel did not inform them about the date of hearing. When appellant came to Delhi, on contacting his advocate, he came to know that matter has already been decided ex parte against them. Appellant engaged another counsel and thereafter, filed the present application. The counsel noted wrong date and did not inform them.
4. It is also contended that date of knowledge of passing of ex parte decree is 4th May, 1992 and if this date is taken as date of knowledge, then present application is not time barred. It is also argued that FAO No.239/1992 Page 3 of 15 for mistake of counsel, appellants cannot suffer and there are sufficient grounds for setting aside ex parte decree.
5. On the other hand, it is contended by learned counsel for respondent that on 6th February, 1992 matter was listed for admission/denial also. On that date, appellant was supposed to be present. It is further contended that present application is hopelessly time barred, as ex parte decree was passed on 30th March, 1992 while application for setting aside the same was filed only on 6th May, 1992.
6. Other contention is that, there are contradictions in the averments made in the application, as well as in the evidence given by the appellant and earlier counsel. So, no ground is made out for setting aside ex parte decree. In support, learned counsel for respondent relied upon Salil Dutta Vs. T. M. And M. C. Private Ltd. (1993) 2 Supreme Court Cases
185. In this case it was observed:
FAO No.239/1992 Page 4 of 15
"The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanor of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."
7. Grounds for non appearance on the date of hearing have been mentioned in para 5 and 6 of the application, which read as under:
"5. That the defendant no. 2 came to Delhi on 4.5.1992 and met his counsel and enquired about the date of hearing of the case, the counsel was unable to tell the next date then the defendant no. 2 made enquiry from the staff of this Hon‟ble Court and came to know that the suit was decreed exparte on 30.3.1992. Thereafter the defendant no. 2 engaged the present counsel who inspected the case file hence the present application.FAO No.239/1992 Page 5 of 15
6. That the absence of the defendants on the adjourned date i.e. 6.2.1992 was for the above mentioned reasons. The absence was bonafide and unintentional and was for the reasons that the learned counsel for the defendants never informed the defendants regarding the date of hearing and never required the defendants to be present in court."
8. As per these averments, appellant no. 2 came to Delhi on 4th May, 1992 and met his counsel and enquired about the date of hearing but the counsel was unable to tell the next date. It was only on enquiry made from the staff of the Court, appellant no. 2 came to know that the suit was decreed ex parte on 30th March, 1992.
9. On the other hand, previous counsel of appellants Sh. Ajay Kumar (AW-2) in his deposition stated that he appeared on the last date of hearing i.e. 20th November, 1991 and noted next date of hearing in his diary as 6th May, 1992. He realized his mistake in noting a wrong date only when his client had informed him on 5th May, 1992.
FAO No.239/1992 Page 6 of 15
10. In cross-examination, AW-2 stated that Mr. Pawan Kumar (who is partner of appellant no. 1) was contacting him on behalf of appellants. Appellants contacted him lastly in May, 1992. He further stated that appellants contacted him on 4th May, 1992 and he was not aware about the progress of the case. When appellant came to know on 5th May, 1992 that ex parte has already been passed, then he was informed accordingly. AW-2 further stated that appellants on 4th / 5th May, 1992 did not contact him personally but contacted on telephone.
11. Statement of Sh. Ajay Kumar (AW-2), runs contrary to the averments made in para 5 of the application, as AW-2 states that appellant came to know on 5th May, 1992 that the ex parte has already been passed and then he (AW-2) was informed. In the same breath, this witness states that appellants on 4th /5th May, 1992, did not contact him personally but contacted on phone.
FAO No.239/1992 Page 7 of 15
12. On the other hand, in para 5 of the application it is stated that on 4th May, 1992, appellant no.2 came to Delhi and met his counsel and enquired about the date of hearing. In cross-examination AW-1 (appellant no.
2) categorically stated that after 4th May, 1992 he did not meet his counsel. Thus, there are contradictions in the statements of AW-1 and AW-2.
13. In entire application it is no where stated as to on which date, appellant no. 2 made enquiry from the staff of Court and on which date he came to know that the suit was decreed ex parte on 30th March, 1992.
14. AW-1 Sh. Vipin Sharma (appellant no.2) in examination-in-chief does not state at all about meeting his lawyer on 4th May, 1992. On the other hand, he states that " when he came to Delhi on 4th May, 1992, he came to know that an ex parte order has been passed against them." Thereafter, he came to know from the Court that a decree has been passed against them.
FAO No.239/1992 Page 8 of 15
15. AW-1 is silent about meeting his counsel (AW-2) nor AW-1 in his entire statement stated that he contacted his counsel on telephone, either on 4th or 5th May, 1992.
16. Trial court in this regard observed;
"Considering the submissions made in the application under Order 9 Rule 13 CPC and the evidence of the applicant, it appears that there are some material contradictions. In para 5 of the application it is stated that the defendant no. 2 met his counsel and inquired about the date of hearing of the case. The counsel as pleaded, was unable to tell the next date. The statement of the counsel as AW-2 about the wrong noting of the date in his diary is thus in contradiction to the statement in para 5 of the application and is beyond pleadings. The application under Order 9 Rule 13 CPC is based on the assurance of the counsel as contained in para 3 and 4 of the application that he will continue to inform the defendants about the progress of the case. However, the counsel states a different story of noting the wrong date. It is not pleaded in the application. This fact is also belied when there is specific statement that the defendant no. 2 met his counsel FAO No.239/1992 Page 9 of 15 on 4.5.1992. But not on telephone as stated by the counsel itself as AW-2."
17. The case of appellants does not appear to be convincing at all. Wrong noting of date by the counsel, is a very lame excuse and not much relevance can be placed on it. Appellants have put entire blame on their previous counsel. However, considering the circumstances of the case, it cannot be said that appellants acted diligently either.
18. Sh. Ajay Kumar (AW-2), no where states that he assured the appellants, that they should not appear on each date and their interest will be looked after by him. Admittedly, on 6th February, 1992 matter was fixed for the purpose of admission/denial and for this purpose, parties are required to be present in person.
19. Another interesting feature in this case is that, as per statement of AW-1 (appellant no. 2), his brother Pawan Dubey (partner of appellant no.1) was dealing with his counsel. There is no mention of this fact in the application. It is nowhere mentioned in the application, FAO No.239/1992 Page 10 of 15 as to what was the next date of hearing as noted by Pawan Dubey when, admittedly he (Pawan Dubey) was dealing with the counsel and was contacting the counsel.
20. Rule 13 of Order 9 of Code reads as under:
"Rule-13 Setting aside decree ex parte against defendant- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.
[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had FAO No.239/1992 Page 11 of 15 notice of the date of hearing and had sufficient time to appear and answer the plaintiff‟s claim.] [Explanation-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree]"
21. It is well settled that "sufficient cause" as per this provision, for non appearance in each case, is a question of fact. This Court in New Bank of India Vs.M/s. Marvels (India): 93(2001)DLT558, held;
"No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this FAO No.239/1992 Page 12 of 15 aspect cumulative effect of all the relevant factors is to be seen."
22. Appellants in the present case, have taken the court proceedings very casually. It is not that appellants are illiterate or ignorant villagers. Since, Pawan Dubey (partner of appellant no. 1) and brother of appellant no. 2, was pursuing the matter and contacting the counsel, thus appellants are not justified in shifting the entire blame on their counsel.
23. In Indian Sewing Machines Co. Pvt. Ltd. Vs. Sansar Machine Ltd. and Anr., 56 (1994) Delhi Law Times 45, it was observed;
"The question to be examined is whether the responsibility of the defendants as a litigant comes to an end merely by engaging a counsel and should not a litigant show diligence on his part."
24. In Ravinder Kaur Vs. Ashok Kumar and Anr., (2003) 8 Supreme Court Cases 289, it has been laid down that;
FAO No.239/1992 Page 13 of 15
"Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system".
25. In view of the above discussion, no ambiguity or illegality is there in the impugned order. Present appeal is most bogus and frivolous one and has been filed just to delay the proceedings. Appellants have succeeded in delaying the execution of decree for more than 17 years. Under these circumstances, this appeal is dismissed with costs of Rs. 30,000/- (Thirty Thousand Only).
26. Appellants are directed to deposit the costs with Registrar General of this Court within one month from today, failing which the same shall be recovered in accordance with law.
27. Trial court record be sent back.
28. List for compliance on 10th December, 2009. FAO No.239/1992 Page 14 of 15 CM NO. 3265/1992
29. Dismissed being infructuous.
5th November , 2009 V.B.GUPTA, J.
bhatti FAO No.239/1992 Page 15 of 15