National Research Development ... vs Titanium Tantalum Products ...
1998 Latest Caselaw 705 Del

JUDGMENT

M.K. Sharma, J.

1. This is an application filed by the defendant under Order 9 Rule 7 read with Section 151 CPC praying for setting aside the order dated 17th October, 1996 passed by this court whereby this court struck out the defense of the defendant and the suit was ordered to be proceeded ex parte as against the defendant.

2. The aforesaid suit was filed by the plaintiff seeking for a decree of permanent injunction restraining the defendant from committing infringement of patents No.134375 dated 24th January, 1972 and 138571 dated 4th December, 1972. The defendant contested the suit by filing a written statement and on completion of the pleadings dates of trial were fixed from l0th to 12th May, 1995 and the defendant was permitted to file its list of witnesses. The counsel for the defendant, however, did not comply with the aforesaid order and submitted before the court on 26th May, 1995 that he might be discharged from the case as he had not received any instructions from his client. Accordingly, the counsel for the defendant was discharged from the case on 26th May, 1995.

3. Thereafter, however, on 22nd April, 1996 counsel for the defendant again appeared in the court and submitted that the defendant had once again approached him and that he had already filed fresh power of attorney and, therefore, he might be allowed to continue in the suit. This court by order dated 22nd April, 19% allowed the counsel for the defendant to continue in the suit but in view of the fact that the trial had been protracted in view of non-appearance of the defendant, the defendant was directed to pay a sum of Rs.2,500/- by way of costs to the plaintiff for the delay in trial ,as condition precedent. The court fixed 1st to 3rd September, 1998 as the dates of trial. On 17th October, 1996, the case was again listed before the court on which date it was recorded that no list of witnesses had been filed by the defendant and the cost as imposed by this court on 22nd April, 1996 for causing delay in the trial had also not been paid. On that date also, none appeared on behalf of the defendant. In that view of the matter this court struck out the defense of the defendant and the suit was directed to be proceeded ex parte as against the defendant. At the request of counsel for the plaintiff the plaintiff was allowed to lead evidence by filing an affidavit which was directed to be filed within four weeks. However, in pursuance of the said order no affidavit by way of evidence has been filed by the plaintiff till date. Subsequently, the defendant has filed the present application.

4. I have heard Mr.P.N.Bhardwaj appearing for the plaintiff and Mr.Praveen Anand appearing for the defendant on the aforesaid application.

5. It is no doubt true that in view of apparent non-action on the part of the defendant, the trial in the suit has been delayed and protracted. The costs directed to be paid by the defendant to the plaintiff as condition precedent has also not been paid till date. However, in the present application, we are concerned mainly with the non-appearance of the defendant on 17th October, 1996. In the application filed by the defendant, the reason for non-appearance of the counsel on that date has been set out. It is stated that the counsel for the defendant missed the matter in the cause list for 17th October, 1996 and, therefore, he could not appear when the matter was called out on 17th October, 1996. It is also stated that the failure on the part of the counsel for the defendant on the next date was on account of a bonafide mistake on the part of the counsel for the defendant and that great prejudice and hardship would be caused to the defendant on account of the order dated 17th October, 1996.

6. Mr. Bhardwaj, appearing for the plaintiff, however, states that the application filed by the defendant under Order 9 Rule 7 read with Section 151 CPC is not maintainable. According to him the order dated 17th October, 1996 passed by this court is an order under the provisions of Order 7 Rules 1 and 2 CPC and, therefore, an application under Order 9 Rule 7 CPC is not maintainable. He further submitted that the order striking out the defense of the defendant cannot be set aside or challenged merely by application under Order 9 Rule 7 CPC. His further submission is that the provisions of Order 9 Rule 7 CPC do not apply to a case in which the plaintiff or defendant has already appeared but has failed to appear on the adjourned hearing of the case and for such intentional delay the procedure is laid down in Order 17 of the CPC.

7. Counsel appearing for the defendant contested the aforesaid submissions by contending, inter alia, that the application filed under Order 9 Rule 7 CPC is maintainable. According to him, on 17.10.1996 the court chose not to dispose of the suit finally but adjourned the hearing of the suit and thus, the court choose to proceed in accordance with the provisions of Order 9 CPC and thus Rule 7 thereof is clearly applicable. In the light of the submissions made by the counsel for the parties it has become relevant to notice the provisions of Order 9 Rule 7 and Order 17 Rule 2 CPC to enable me to give a decision on the issue raised before me.

8. Under Order 17 Rule 2 it is provided that where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes in that behalf by Order IX or make such other order as it thinks fit. It is thus clear that if on a date fixed, one of the parties to the suit remains absent and on behalf of that party no evidence has been led to that date, the court has no option but to proceed with the matter in accordance with Order 17 Rule 2 CPC. This rule is, however, to be read alongwith the provisions of Order 9 of the CPC as reference is made to the aforesaid provisions in Rule 2 of Order 17 CPC.

9. It is an admitted fact that even though a suit is proceeded ex parte as against a particular party, the defendant is entitled to contest the suit and to take part in the suit for the subsequent stages but he cannot be relegated to the position he could have occupied if he had appeared, unless he makes an application for recalling of the order directing for proceeding the suit ex parte. It is also settled law that the rejection of an application under the suit does not stand as a bar to an application under Rule 13 CPC after passing of an ex parte decree.

10. Rule 2 of Order 17 contains expression "on any day to which the hearing of the suit is adjourned". The meaning of the word 'hearing' appearing in the expression has been interpreted by this court in Jaspal Singh v. Municipal Corporation of Delhi; , as the taking of evidence or the hearing of arguments or the consideration of the question relating to suit which would enable the Judge to adjudicate upon the merit of the suit. On the date when the aforesaid order was passed on 17th October, 1996 the matter was listed before this court in view of the order passed by the Joint Registrar that no list of witnesses had been filed by the defendant and that no costs, as imposed, had also been paid. On 17th October, 1996 this court did not choose to dispose of the suit itself but ordered for proceeding the suit ex parte as against the defendant and allowed the plaintiff to lead evidence by way of affidavit. Till this date no affidavit has been filed by the plaintiff by way of evidence in pursuance of the aforesaid order. Thus, the court chose not to dispose of the suit finally on 17th October, 1996 and instead adjourned the hearing of the suit and, therefore, the defendant's filing an application subsequent thereto during which the suit was adjourned for hearing an application under 9 Rule 7 CPC is maintainable.

11. Reference may also be made to a decision of Calcutta High Court in Smt .Daya Moyee Sadhukhan v. Dal Singer Singh wherein it has been held by a Division Bench of the Calcutta High Court that "even in a case where the defense of the defendant is struck out, the defendant's right to cross-examine the plaintiffs witnesses is not taken away". In Delhi Development Authority v. Shanti Devi and Another; it was held that "where the counsel for defendant along with an application under Order 9 Rule 7 filed his own affidavit that he was busy in his personal matter and therefore he could not attend the Court at the time when the suit was called by the Court and also stated that when he reached the Court at 10.55 a.m. he came to know about ordering of ex parte proceedings, the order proceeding ex parte would be liable to be set aside, as there was good cause for the absence of the counsel. It is also held by this court in M.R.Singh v. Smt. Shyam P.Tewari reported in 1989 (3) Delhi Lawyer 434 that the words 'good cause' should be liberally construed. Thus, in my considered opinion, the application filed by the defendant under order 9 Rule 7 CPC is maintainable and worth considering.

12. From the averments made in the application, I am further satisfied that the defendant has been able to make out a case for setting aside the order dated 17th October, 1996 as he has been able to show good cause for his absence. Thus, the order dated 17th October, 1996 directing for striking out the defense of the defendant and for proceeding the suit ex parte as against the defendant is set aside and recalled subject to payment of Rs.5,000/- as costs which is inclusive of Rs.2,500/- already imposed by this court on 22nd April, 1996, payable to the plaintiff through counsel by the defendant within three weeks from today, as condition precedent for setting aside the aforesaid order.

13. Accordingly, I recall and set aside the order dated 17th October, 1998 to the aforesaid extent subject to the pre-condition that the costs of Rs.5000/- are paid by the defendant to the plaintiff within three weeks from today. The suit shall be listed on 5.11.1998 for further orders in the suit.

14. In view of the aforesaid order the application stands disposed of.