R.K. Gupta vs Pink Co-Operative Group Housing ...
1995 Latest Caselaw 967 Del

JUDGMENT

Manmohan Sarin, J.

(1) This is an application under Order Ix Rule 7 Civil Procedure Code to set aside the ex parte order dated 23.5.1995. The facts culminating in the filing of this application may be briefly noted :-

(2) The plaintiff has filed the present suit for recovery, of Rs. 14,99,018.00 (Rs. Fourteen Lakh Ninety Nine thousand eighteen only) in respect of the construction of the flats carried out for the society. The plaintiff was also directed to file exparte evidence by way of affidavit and documents were exhibitod. The defendant isa Cooperative Group Housing Society, the affairs of which an: presently being looked after by the Administrator, who had been appointed by the Registrar of Cooperative Societies. The present administrator also happens to be the Deputy Secretary (Home) in the Government of National Capital Territory of Delhi. (i) The plaintiff has claimed the suit amount which includes the amount of Rs. 8,78,711.00 (Rs. Eight Lakh Seventy Eight thousand Seven hundred and Eleven only) claimed as being balance payable and as certified by the architect of the society for the construction work carried out for the defendants. The balance amount of Rs. 5,40,407.00 (Rs. Five Lakh Fourty Thousand Four Hundred and Seven only) represented the interest claimed(c) 18% P.A. (ii) Summons in the suit were duly served on the administrator of the defendant for 23.5.1995. On the said.date there was no appearance on behalf of the defendants who were proceeded en parte. The Court also restrained the defendants from making allotment of six High Income Group (HIG) flats. The defendants were also directed to furnish security in the sum of Rs. 15,00,000.00 (Rs. Fifteen Lacs) failing which defendant was required to show cause why the si x flats be not attached. On 14.11.1995, the I.A. 4195/95,was dismissed as not pressed with liberty to plaintiff to move a fresh I.A. if so warranted, in view of the plaintiff having failed to file affidavit by way of ex parte evidence. The plaintiff was further directed to file a synopsis of the submissions giving reference of the documents exhibited and the client points within three days and the case was directed to be listed for directions, for 23.11.1995. On 23.11.1995, Counsel for the defendant appeared and submitted that an application under Order 9 Rule 7 Civil Procedure Code had been filed for setting aside the ex parte order dated 23.5.1995. The plaintiff has filed its reply to the said application and the same was heard on 5.11.1995, and order was reserved.

(3) The defendant admits the service of summons in 23.5.1995, it is the defendant's case that the Registrar of Co-operative Societies had dissolved the Managing Committee and appointed the administrator. The General Body of the society elected the Advisory Committee and one Sh. G.L. Salmi was appointed the conveyor of the said Committee to assist the administrator the defendant's case is that the administrator requested the said Sh. G.L. Sahni to appear and seek adjournment on 23.5.1995. The said Sh. G.L. Sahni informed the administrator that he could not appear on 23.5.1995 due to his daughter, who had been recently married, taking ill suddenly and requiring immediate medical aid. The application is supported by affidavits of the said Sh. G.L. Sahni and of the administrator. It is further submitted that the administrator engaged Mr. J.H.Jafri. Advocate to defend the suit and asked him to appear in the Court on 14.11.1995, the date on which the I.A and the suit were listed. It is submitted that the Counsel met with an accident while coming to the Court and could not reach the Court till 1.30 p.m and thereafter he learnt that the case had been adjourned to 23.11.1995. The present application was accordingly filed. The application is supported by the affidavit of the Counsel Sh. J.H. Jafri. The Counsel for applicant/defendant submitted that absence of defendant on 23.5.1995 or on 14.11.1995 was neither deliberam nor intentional but was on account of the aforesaid bona fide reasons. Counsel argued that the ex parte order dated 23.5.1995 be set aside.

(4) The application is opposed by the respondent firstly out the ground that the same is not maintainable under Order Ix Rule 7 CPC. The precise argument of the plaintiff is that the affidavit by way of evidence had been filed The documents had been exhibited and nothing more remained to be done except the pronouncement of judgment. It is argued that in these circumstances, an application under Order Ix Rule 7 Civil Procedure Code would not be maintainable. Besides the inherent powers of the Court could also not be exercised for setting aside the ex parte order Reliance is palced by the plaintiff on Arjun Singh v. Mohinder Kumar, 1964 Sc 993 wherein it was held that if the hearing of the suit had been completed and the Court being competent to pronounce the judgment then and suit is adjourned merely for the purposes of pronouncement of judgment, then there is no adjournment of the hearing of the suit and accordingly, provisions of Order Ix Rule 7 Civil Procedure Code would not apply and the matter would stand at the stage of Order Ix Rule 6 Civil Procedure Code to be followed by passing of an ex parte decree. In such a situation, application under Order Ix Rule 13 Civil Procedure Code would be maintainable and not one under Order Ix Rule 7. Reliance is further placed on Air 1994 Noc 30 Delhi, in which case the plaintiff's evidence had been recorded and the arguments were finally heard and the suit was listed for pronouncement of judgment. The application under Order Ix Rule 7 Civil Procedure Code was held not maintainable. Further that inherent powers of the Court under Section 151 Civil Procedure Code could not be invoked for setting aside ex parte proceedings. On merits it is submitted that the defendant admits to being served on 23.5.1995. The defendant was grossly negligent in not appearing after 23.5.1995 till 14.11.1995. the defendant had even failed to furnish the security. The plea of the defendant regarding the non appearance on 14.11.1995 is again disputed. It is pointed v .it that the defendant's Counsel could have even mentioned the matter in the afternoon. It is submitted that the defendant has filed this present application only after 1.A. 3148/95 was withdrawn. Reference is also made to circular of 1.5.1995, wherein the administrator had called upon the members to contribute money for defense of the suit, thereby establishing complete knowledge of the filing of the suit.

(5) As regards the first submission made by the plaint it f, the ratio of the case reported at Arjun Singh v. MohinderKumar (supra ) and Arti Sukhdev Kashyap v. Day a Kishore (Supra) is that once the hearing is complete and the case is adjourned for pronouncement of judgment, then an application under Order Ix Rule 7 would not be maintainable and even inherent powers could not be exercised for setting aside the ex parte order. However, in the instant case, I find that on 14.11.1995, the plaintiff was directed to file synopsis of the submissions giving reference of the documents exhibited and the salient points within three days. It would be seen that in this case the plaintiff had claimed the suit amount on the basis of a certified bill of the architect and further sum of over Rs. 5,00,000.00, was being claimed by way of interest. The plaintiff was therefore required to file the synopsis giving reference of the documents exhibited to facilitate the hearing and arguments in the matter. The case was therefore listed for directions on 23.11.1995. It therefore, cannot be said that plaintiff was not to be heard or that the judgment had been reserved. Accordingly, the aforesaid decisions in the facts of the instant case would not apply and an application under Order Ix Rule 7 Civil Procedure Code would be maintainable.

(6) It is well settled that the good cause under Order Ix Rule 17 Civil Procedure Code is to be given a liberal construction. In the instantcase,the administrator has explained that due to his official pro-occupations as Deputy Secretary (Home), he had requested the conveynor of the Advisory Committee to appear in Court on 23.5.1995. The reasons given by the said conveynor Sh. G.L. Sahni for non appearance arc convincing. In the circumstances of the case, where the Managing Committee of the society had been dissolved and administrator appointed who did not have complete access of the records of the society, the action taken by the administrator in asking the conveynor of the Advisory Committee to appear in Court cannot be termed as unreasonable. The non-appearance on behalf of the defendant on 23.5.1995 was due to the mishap as set out in the affidavit of the conveynor is a good cause. However, there is no doubt that the defendant has been grossly negligent subsequent to 23.5.1995 in not applying for setting aside the ex parte proceedings or taking further steps. The defendant has slept over the matter till 14.11.1995, when the Advocate was requested to appear, who again met with an accident and could not attend the Court on the said date. However, in a matter like this consideration or doing substantial Justice must prevail. Moreover the plaintiff can be compensated with costs. In view of the foregoing discussions, thi ex parte order dated 23.5.1995 is set aside subject to Rs. 5,000.00 as costs with the further condition that the defendant shall not alienate, allot or part with possession of six Hig Flats to two each on the ground, first and second floor till further ordered I.A. stances disposed of.