Sanjiv Chhabra vs Surjan Singh And Anr.
1991 Latest Caselaw 239 Del

JUDGMENT

R.L. Gupta, J.

(1) This revision is directed against an order dated 17.3.1990 of the learned Sub Judge 1st Class, Delhi by which he dismissed an application of petitioner-defend ant 2 moved under Section 151 of the Code of Civil Procedure with costs. The application was moved for restoration of his application under Order 9 Rule 7 of the Code.

(2) I have heard learned counsel for the parties. The facts in brief are that respondent I who is the plaintiff before the trial Court has filed a suit for possession against the petitioner and respondent 2. The petitioner was proceeded ex-parte in the proceedings on 10.11.1986. He had appeared through counsel on 30.6.1986 and absented from the proceedings on 10.11.1986. Thereafter, he moved an application under Order 9 Rule 7 of the Code on 20.3.89 i.e. after more than 2 years and 4 months for setting aside ex-parte order against him. That petition was also dismissed for non prosecution on 20.7.1989.

(3) Learned counsel for the petitioner submitted that her three matters were listed that day before the trial Court and she was under an impression that her presence had been marked in this case also and so she left. It may be noted that the plaintiff's case is being supported by the petitioner before the the trial Court because even now learned counsel for the plaintiff-respondent 2 does not oppose the restoration of the application of the petitioner under Order 9 Rule 7 of the Code.

(4) However, this Court will have to consider whether the petitioner is justified in seeking restoration of his application under Order 9 Rule 7 of the Code and whether the trial Court was in error in not ordering the restoration. I am of the view that the trial Court was fully justified in not restoring the application under Order 9 Rule 7 of the Code moved by the petitioner. First of all the petitioner remained ex-parte during the proceedings for more than 2 years and 4 months. Thereafter, he or his counsel did not take proper care in remaining present at the time this case was called before the trial Court on 27.7.89. It may also be noted that in the application under Section 151 of the Code, it is rather stated that the petitioner was busy with Land Acquisition Collector and his counsel Sh.D.N..Ramdev was busy in the High Court and could appear only after lunch. It is not understood why it is stated in this application that Smt. Suman Kapur had appeared in all the three cases in the prelunch session and then Sh. D.N. Ramdev also appeared in all the three cases after lunch. If Smt. Suman Kapur had appeared in the morning session in all the three cases, I do not understand the need for Mr. D.N. Ramdev, learned counsel for the petitioner to appear again in all the three cases afterlunch. It may be noted that the application under Section 151 of the Code was listed for reply of the plaintiff and arguments on 20.7.89. It was not listed merely for making the presence of Smt. Suman Kapoor. Therefore, the allegation in the application that she was under the impression that her presence having been marked and so she left, is not correct. In that case, there was no need for Mr. Ramdev, the other counsel, to appear after lunch. The inescapable conclusion is that the application under Section 151 of the Code was intentionally got dismissed in default to prolong the agony of the respondent. The trial Court was, therefore, justified in concluding that the petitioner was intentionally delaying the proceedings and with that idea there was intentional absence from the Court when his case was called.

(5) It may be noted that the Courts are meant to rectify bonafide mistakes committed by the parties. But if it comes to a conclusion that the absence was intentional or deliberate simply to prolong the proceedings, the Court will not exercise its discretion in favor of the party guilty of such conduct. Since the interest of the petitioner and respondent-plaintiff seem to be similar, the only inference which can be deduced by the present conduct of the petitioner is that his intention is simply, to relegate trial of the case back to 1986 when he chose to be absent from the proceedings. I am, therefore, of the view that learned trial Court has not committed any jurisdictional illegality or. improprietory in refusing to exercise discretion in favor of the, petitioner. The revision is accordingly dismissed with costs. Counsel fee is assessed at Rs. 500.00.