Mala Dang vs R.K. Cables And Ors.
1987 Latest Caselaw 327 Del

JUDGMENT

Arun B. Saharya, J.

(1) By these applications defendants 1, 2 and 3 have prayed for setting aside ex-parte decree dated 14.5.86, for condoning delay in filing the application, and to stay proceedings for execution of the decree pending disposal of the first two applications.

(2) In the suit, plaintiff prayed for a decree for recovery of Rs 6,10,000.00 with interest and costs from the defendants No. I is a partnership firm. Defendants 2 and 3 are brothers. They and defendant No. 4 are partners of the firm. Defendant No. 5 is another partnership firm. It is alleged to have guaranteed payment of money due from defendant No. I to the plaintiff.

(3) The suit was filed 31.8.2985. On 14.10.1985, one of the partners of defendant No. 5 was present, an order was made to proceed ex-parte against defendants I to 4 as none appeared for them inspite of service of summons, and, hearing of the suit was adjourned to 19.11.1985. That day, order to proceed ex-parte against defendant No. 2 was set aside on his application (IA 6586 of 1985), Mr. B.L. Gupta, Advocate appeared on behalf of defendants I to 4, defendant No. 5 was represented by another Advocate, defendants were directed to file written statement, and proceedings were adjourned to 8.1.1986. That day, another Advocate Mr. Sunil Aggarwal appeared for defendants 1 to 3 and stated that he had recently been engaged and wanted time to file written statement. He was allowed to do so within ten days. Again, Mr. Sunil Aggarwal appeared on 17.2 1986 and undertook to file written statement within two days, and directions were given for filing replication, for admission and denial of documents, and, hearing of the suit was adjourned to 24.3.86.

(4) Thereafter, none appeared for any of the defendants session 24.3.1986, 2.4.1986 and on II.4.1986 when order was made again to proceed ex-parte against the defendants and the case was adjourned to 14.5.1986 for recording ex-parte evidence of the plaintiff. On 11.4.1986 itself, an application (IA 2437 of 1986) was filed, by Mr. B.L. Gupta, Advocate on behalf of defendants I to 4, to set aside the order made earlier that day. This application and other related papers were signed personally by Ram Gopal, defendant No. 2, along with Mr. B.L.Gupta. It was also supported by an affidavit of Ram Gopal. It was alleged in the application that counsel for defendants and Ram Gopal reached Court late that day and found that order had already been made to proceed ex-parte against the defendants. This application was listed before the court on 15.4.1986 when no one appeared on behalf of the applicant. It was listed again on 16.4.1986 when it was dismissed in default on failure of anyone to appear on the second consecutive day. Ex-parte evidence of the plaintiff was recorded on 14.5.1986, and an ex-parte decree was passed against defendants I to 4. Plaintiff gave up her claim against defendant No. 5.

(5) After ex-parte decree was passed, proceedings were commenced for execution of the decree by an application registered as Ex 150 of 1986. Warrants were issued for attachment of the property of judgment-debtors and execution proceedings were adjourned to 6.1.1987 for report on execution of the warrants.

(6) The present applications were filed on 12.11.1986 through Mr. A.K. Singla, Advocate. It was stated that the applicants engaged Mr. B.L. Gupta, Advocate to represent them and that they entered appearance through him. It was alleged that after the applicants briefed him and got written statement prepared on 17.2.1986, whenever they contacted Mr. Gupta from time to time he "had been advising about the pendency of the suit". It was alleged, "Regarding appearance by the applicants in courts on the dates fixed for hearing in the case the applicants were advised and informed not to appear in person in the Hon'ble Court on the ground of the same being not permitted. Accepting and relying on the advice and information the applicants used to gather the progress of the suit which was stated by the said advocate to be pending in this Hon'ble Court." On 28.10.1986, it was alleged, the applicants were informed by their ladies at home about visit of the bailiff from court for attaching their properties, they immediately tried to contract Mr. Gupta but he was not available, so they rushed to inspect the record through Mr. Sikander Ali Advocate, junior of Mr. Gupta. Thus, it was alleged that they came to know about the ex-parte judgment and decree passed on 14.5.1986. Further, it was alleged that they wanted to find out the position from Mr. Gupta but he could not be contracted So, they approached Shri A.K. Singia, Advocate on 29.10.1986. He require file of the case. After several visits to the office of Mr. Gupta, the applicants got the file on 4.11.1986 and gave it to Shri Singia. Then, he inspected the court file and made these applications.

(7) condensation of delay in making the application to set aside the ex parte decree has been sought on the plea that the applicants had no knowledge of exparte decree till the bailiff visited their house for attachment of their properties.

(8) The applicants placed the entire blame on their advocate Mr. Gupta for all the defaults in the case and it was argued that he was negligent and the applicants should not be made to suffer for his negligence. The applicants are defendants in another Suit No. 1601 of 1985 filed by M/s Gloria Chemicals against them. In this case also they conducted themselves on a pattern similar to that in the present case. After entering appearance they disappeared, suffered ex parte decree, and then applied, beyond limitation, to condone delay, to set aside ex parte decree, and to stay execution of the decree. Those applications were also heard together with the applications in the present case and common arguments were advanced by counsel for parties in both the cases. The arguments advanced on behalf of the applicants have been discussed and have been rejected for reasons stated in a separate order pronounced today on Ia 6720 and 6721 of 1986 in Suit No. 1601 of 1985. Those reasons hold good for decision of the present applications also.

(9) The pattern of proceedings in both these cases clearly shows mala fides of the applicants. Obviously, they wanted to keep the plaintiff at bay by abusing desire of courts to save innocent litigants from suffering because of inaction of advocates engaged by them as expressed in the various judgments on which the applicants relied heavily to support these applications.

(10) The applicants want the court to believe that they made enquiries from Mr. B.L. Gupta Advocate from time to time, that he told them that the suit was pending also and advised them not to appear in person in court as it was impermissible to do so. These allegations are not only unjustified but are falsified by facts borne out from an earlier application (IA 2437 of 1986) filed by them on 11.4.1986 to set aside order made that very day to proceed exparte against the applicants. That application and its index are signed personally by Ram Gopal together with Mr. Gupta, Advocate. It is also supported by an affidavit of Ram Gopal. It is stated in the application that the counsel with Ram Gopal reached court at 10.50 a.m. on 11.4.1986 but found that order had already been made to proceed ex parte against them. By this order itself proceedings were adjourned to 14.5.1986 for recording ex parte evidence of the plaintiff. This statement shows, firstly, that the applicants used to accompany their advocate to court on days of hearing of the case, and .secondly, they knew that proceedings had been adjourned to 14.5.1986. It is interesting to note that inspite of knowing order made on 11.4.1986, and also knowing that the case was fixed for plaintiffs' evidence on 14.5.1986, the applicants suffered dismissal in default of Ia 2437 of 1986 by not appearing on 15.4.1986 and 16.4.1986 when this application was listed before the court on an urgent request made by the applicants to do so, nor did they appear in court on 14.5.1986, when ex-parte decree was passed against them. In these circumstances, it is clear that the allegations made in the present applications that the applicants did not know of the ex parte decree passed on 14.5.1986 and that Mr. Gupta Advocate kept telling them that the case is pending in Court, are false.

(11) In these circumstances, IAs 6290, 6307 and 6308 of 1986 are dismissed with costs. Counsel's fee Rs. 2200.00 .