New India Chemicals vs Godrej Soaps Ltd.
1997 Latest Caselaw 625 Del

JUDGMENT

Devinder Gupta, J.

(1) ADMIT.

(2) With consent of the parties' counsel appeal has been heard today.

(3) The appeal is against an order passed on 10.3.1987 by learned Single Judge dismissing the two applications filed by the defendants-appellant, namely, under Order 9 Rule 13 of the Code of Civil Procedure (for short 'the Code') for setting aside the ex parte decree dated 4.9.1996 passed in Suit No.1608/85 and another application moved under Section 5 of the Limitation Act seeking condensation of delay in filing the application under Order 9 Rule 13 of the Code.

(4) The suit was posted on 15.5.1995. Statement of Public Witness 1 Upender Kapur was recorded. Another witness V. Kavishwar was present. No time was left as such the suit was directed to be posted for trial from 11.4.1998 to 13.4.1998. For scrutiny the case was directed to be posted before the Jt. Registrar on 27.11.1995. Plaintiff appeared before the Jt. Registrar on 27.11.1995 but nobody appeared for the defendants. The Jt.Registrar passed an order that if any witness is sought to be examined through Court, requisite diet money and process fee be filed within six weeks and thereafter witnesses will be summoned for the dates of trial already fixed. The Jt. Registrar also directed the application, which had been moved by the defendants (IA 8860/94) to be posted before the Court for consideration on 5.1.1996. On 5.1.1996 case could not be taken up since the Hon'ble Judge was not holding the Court. The Court Master gave the next date as 29.1.1996 in Ia 8860/94.

(5) On 29.1.1996, only Ia 8860/94 was to be posted for appropriate orders but the record reveals that suit was also taken up on that date though the same already stood adjourned to 11.4.1998. Only counsel for the plaintiff was present. Defendants were unrepresented. In the absence of the defendants the date in the suit was preponed to 9.4.1996. It was also observed that cross-examination of PW-1 had not yet completed. As such it was directed that the trial will be conducted on day-to-day basis. Ia 8860/94 was also directed to be taken up along with the main suit.

(6) The suit was taken up on 10.4.1996. Only counsel for the plaintiff was present. Suit was adjourned for trial to 30.7.1996. Suit was again not taken up on 30.7.1996. It was taken up on 5.8.1996 on which date statement of Public Witness 2 was recorded. Plaintiff closed his evidence. Suit was directed to be posted for 14.8.1996 for defendants' evidence. It is pertinent to note that only counsel for the plaintiff appeared on 5.8.1996. None appeared for the defendants. Order does not state that defendants were proceeded against ex parte. On 14.8.1996, again, counsel for the plaintiff appeared. None appeared for the defendants. The order reads:

"SUITNo.1608/85 The matter was posted for evidence of defendants. Neither the defendants nor their counsel are present. It is clear that the defendants do not want to produce any evidence, therefore, the defendantss' evidence is closed. Post the suit for arguments at the end of "Short Matters" on 30.8.1996. Mr. V. Kavishwar, Assistant Manager (Accounts) of the plaintiff is present."

On 30.,8.1996 case was adjourned to 4.9.1996 and ultimately on 4.9.1996 the suit was decreed ex parte.

(7) On 15.10.1996, the aforementioned two applications were moved by the defendants-appellant seeking setting aside of the ex parte decree and condensation of delay in filing the applications, inter alia, alleging that on 1.10.1996 defendants were shocked to learn for the first time from an employee of the plaintiff's firm that the suit already stood decided and decree passed by the Court. Since counsel for the defendants was lying sick for the last about five weeks, the defendants immediately deputed one of the employees to take necessary steps to have inspection of the record and to ascertain the exact position when despite repeated efforts on the part of the employee of the defendants, record of the case was neither traceable in the Registry nor the same was made available for inspection. Defendants, thus, had no option but to engage another lawyer on 10.10.1996, who was instructed to take immediate steps for the inspection of the record and to move an appropriate application for setting aside the ex parte decree. On 11.10.1996 another application for inspection of the record was moved on urgent basis. Court record was not traceable. The same was made available for inspection only on 14.10.1996, since 12th and 13th October, 1996 were holidays. Thus, on 14.10.1996 the defendants came to know of the ex parte decree having been passed by the Court on 4.10.1996. It was further alleged in the application that trial dates were preponed without any notice to defendants, who had no intimation of the pre-poned dates. In this background prayer was made to condone the delay in filing the application for setting aside the ex parte decree.

(8) Applications were supported on the affidavit of Harjit Singh, sole proprietor of defendant No.1- firm. Plaintiff opposed these applications. Learned Single Judge dismissed the applications on the ground that learned counsel appearing for the defendants had knowledge of the posting of the matter because the case was shown in the list every time and on 10.4.1996 when suit was posted for trial for 30th July, 1996 there was absolutely no explanation as to why counsel for the defendants was not aware of this position. Three months' time was enough for anybody to get ready and counsel for the defendants cannot say, having regard to practice followed by the Court showing the case in the list that he was not aware of the case being posted in the list. Accordingly Court proceeded to hold that the defendants had not shown sufficient cause for their appearance on the dates on which the suit was taken up.

(9) Having heard counsel for the parties at length, we are of the view that procedure adopted by the learned Single Judge in proceeding to decree the suit ex parte is unwarranted in law. On 15.5.1997, the suit had already been adjourned for trial, in the presence of counsel for the parties, to 11th to 13th April, 1998. Neither an application had been moved by the plaintiff for pre-poning the dates of trial, nor any intimation was sent to the defendants that the dates of trial are to be pre-poned. On 29.1.1996, in the absence of defendants or their counsel, trial dates were pre-poned. The record does not show that trial dates were pre-poned even on the plaintiff's request. In case suit had already been adjourned for trial to 11th to 13th April, 1998, it was not reasonably expected by the defendants that without any prior notice or intimation to them dates of trial would be pre-poned. Even if the case was shown in the cause list and counsel for the defendants did not put in appearance, order could not have been made for pre-poning the dates of trial without notice to the defendants. In case dates had to be pre-poned, at least intimation ought to have been sent to the defendants. The application for setting aside ex parte decree clearly stated that counsel for the defendants was lying ill for the last five months and in normal circumstances a counsel would not look into the cause list for a case, which had already been adjourned to April, 1998. Learned Single Judge even proceeded to record the statement of Public Witness 2 on 5.8.1996 in the absence of defendants without even ordering the defendants to be proceeded against ex parte. Moreover, the order does say that nobody was present on behalf of the defendants. Since proceedings took place in the suit, in the absence of defendants, without any notice to the defendants, and trial dates were pre-poned without notice or intimation to the defendants, the defendants were justified in not appearing and these circumstances were more than sufficient to enable the learned Single Judge to set aside the ex parte decree. Suit ought not to have been decreed ex parte. There was also no question of any condensation of delay in filing the application for setting aside ex parte decree, since defendants had no notice of the dates fixed for trial, which had been pre-poned without any intimation to them. In any case, even if it be assumed that there was any delay, in the facts and circumstances, it was a fit case where delay ought to have been condoned. The order is not sustainable in law.

(10) Consequently the appeal is allowed. Applications moved by the defendants are allowed and ex parte decree passed on 4.9.1996 is set aside.

(11) Resultantly, the proceedings, which have taken place in this case on and after 29.1.1996 are also set aside. Parties are directed to appear before the learned Single Judge on 4.8.1997. Fresh dates will be fixed for recording the statement of Public Witness 2 and in case the plaintiff would like to rely upon examination-in-chief, which has already been recorded, the witnesses will be made available for the purpose of cross-examination. Thereafter dates for recording of the evidence of the defendants will be fixed and the trial will proceed in accordance with law.