* HIGH COURT OF DELHI AT NEW DELHI
+ CS (OS) No.804/2011
Decided on: 19th May, 2014
HEMANT KUMAR ..... Plaintiff
Through: Mr.Varun Nischal, Adv.
Versus
OM DUTT SHARMA AND ORS ..... Defendant
Through: Ms.Prerna, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
I IA No.16552/2012 (u/O 9 R 13 read with Section 151 CPC) IA No.1430/2013 (u/Section 5 of the Limitation Act, 1963)
1. These two applications have been filed by the defendants under Order 9 Rule 13 CPC and under Section 5 of the Limitation Act, 1963.
2. Briefly stated the facts of the case are that the plaintiff has instituted the present suit for possession, permanent injunction and recovery of mesne profits/damages against the defendants. The defendants were served and had put in appearance through counsel on 26.04.2011. They were granted 30 days time to file the written statement and reply to the interim application. The matter was adjourned to 10.08.2011. After four months, when the matter was taken up on 10.08.2011, there was no appearance on behalf of the defendants. Consequently, they were proceeded ex parte and the case was fixed for ex parte evidence. The plaintiff filed the ex parte evidence by way of affidavit, got the documents exhibited and consequently an ex parte decree was passed against the defendants on 23.02.2012. The defendants have filed the application (IA No.16552/2012) for setting aside the ex parte decree on 06.09.2012 along with an application under Section 5 of the Limitation Act, 1963 being IA No.1430/2013 seeking condonation of delay of 192 days in filing the application under Order 9 Rule 13 CPC.
3. I have heard the learned counsel for the defendants on both the applications and have also gone through the reply filed by the plaintiff. The main contention of the learned counsel for the defendants for setting aside the ex parte decree passed against them is that on the first date of appearance Ms.Manisha Suri, Advocate was engaged and she had put in appearance on 26.04.2011, but the defendants could not continue with the said counsel on account of the ill-health of the defendant No.1 who is an old person of 65 years of age and is suffering from various ailments because of which he was in and out of the hospital. It is also alleged that in addition to the ground of ill health, due to financial constraints, the defendants could not continue with the services of Ms.Manisha Suri, Advocate. It has been stated that the moment the defendant No.1 regained his health, he filed the application for setting aside the ex parte decree. He has further stated that the delay which has taken place in filing the application was only on account of financial constraints as well as the ill-health of the defendant No.1. The defendants have also placed on record photocopies of some of the prescriptions and the medical tests of the defendant No.1 which are purported to have been undergone by him.
4. The law regarding setting aside an ex parte decree is very clear under Order 9 Rule 13 CPC. The same is that the defendant must show that either he has not been served, or, if he has been served, then he has been prevented by 'sufficient cause'. A cause is construed to be 'sufficient' only if it is a cause which is beyond the human control. A cause like medical illness or medical reasons will be taken to be a sufficient cause only if it is of such a nature that it confines a person to bed or a hospital which restricts his movement or activity of engaging a counsel for the purpose of his defence in the suit. In the instant case, the medical record which has been filed by the defendants only shows that the defendant No.1 has undergone some medical tests which undoubtedly show that the defendant No.1 is suffering from medical ailments because of which he was taking medicines and advised bed rest, but none of the prescriptions is of such a nature which would show that the defendant No.1 was confined to bed for all times to come which would have disabled him from contesting the matter; more so, when a counsel was engaged.
5. Not only the application under Order 9 Rule 13 CPC has to be filed within thirty days of the passing of the decree or at least from the date of knowledge when the decree comes to his notice but any delay in doing so must be sufficiently evidenced while as the present application has been filed by the defendants after a lapse of 192 days in respect of which they have sought condonation of delay. With regard to the condonation of delay, a party has to necessarily show 'sufficient cause' before such a delay is condoned and a cause as has been stated above will be construed to be 'sufficient cause' only when it is beyond human control or conversely the court has interpreted a party who is grossly negligent or a party which takes things for granted can never be said to be vigilant enough to protect its interests and it cannot be bracketed with 'sufficient cause'. In the instant case, the defendants have taken the same plea which has been taken in the main application as the ground which disabled him from filing the application timely. As has been observed above, the medical prescriptions which have been placed on record have been perused by the court minutely and the court is not convinced from any of the photocopies of the medical prescriptions placed on record that these medical conditions from time to time disabled the defendant No.1 from prosecuting the matter or defending the matter. It seems on the contrary that this being a suit for possession, permanent injunction and recovery of mesne profits/damages, the entire effort of the defendants was to see that there is a delay in final disposal of the suit and this could have been done by them only to first let the court proceed with the case and then later on get their application under Order 9 Rule 13 CPC allowed and put the clock back. Such a thing cannot be permitted to be done at the instance of unscrupulous litigants and cause delay in expeditious disposal of the cases. I am not convinced at all with the bona fides of the defendants that they were prevented by 'sufficient cause' either from filing the application under Order 9 Rule 13 CPC timely within 30 days from the date of passing of the decree or prevented by 'sufficient cause' from defending the matter after having duly been served and represented by a counsel before the court. I, therefore, dismiss the applications of the defendants both with regard to condonation of delay as well as for setting aside the ex parte decree.
V.K. SHALI, J MAY 19, 2014/dm