Ram Lal Kathuria vs Shiv Kumar Sharma
1999 Latest Caselaw 668 Del

ORDER

DR. M.K. Sharma, J.

1. This revision petition is directed against the order dated 6.6.1997 passed by the civil Judge, Delhi, in suit No. 171/1994 dismissing the application filed by the petitioner/defendant under Order 9 Rule 7 CPC.

2. The respondent purchased the aforesaid suit property in public auction and, thereafter sought for mutation in respect of the said property in his name. As the Delhi Development Authority failed to mutate the said property in the name of the respondent, he filed awrit petition in this court which was registered as C.W.P. No. 1336/1991.In the said writ petition, notice was issued to the petitioner. However, in spite of service of notice, the petitioner did not enter appearance in the said writ petition. By order dated 19.7.1994, the High Court directed the Delhi Development Authority to execute necessary documents in favour of the respondent, with a further direction to mutate the property in his name.

3. The petitioner herein filed a review application as against the aforesaid order passed by this court which was egistered as R.A. No. 7018/1994. This court by order dated 12.3.1997 dismissed the aforesaid review application filled by the petitioner holding that the petitioner daliberately kept away from the court and, therefore, there is no ground to review the order dated 19.7.1994.

4. The petitioner filed several ssuits namely, Suit Nos. 572/1981 , 291/1988 , 572/1988 and 20/1981 against the respondent. However, all the aforesaid suits were dismissed.

5. The respondent filed the present suit against the petitioner claiming possesssion and mesne profits. In the aforesaid suit, summons were served on the defendant and the defendant entered appearance. However, on 5.8.1996, when the matter was called out, none represented the defendent inspite of repeated calls and, therefore, the suit was directed to be proceeded ex-parte against the petitioner/defendant and the suit was directed to be listed for ex-parte evidence.

6. Thereafter, the suit was adjourned on several dates and only on 30.4.1997, an application was filed by the petitioner/defendant under Order 9 Rule 7 CPC for setting aside the ex-parte order dated 5.8.1996. The said application was contested by the respondent and the Civil Judge by the aforesaid order dated 6.6.1997 dismissed the application giving reasons for the dismissal.

7. I have heard the learned counsel appealing for the petitioner as also the counsel appearing for the respondent.

8. It is submitted on behalf of the petitioner that although his counsel entered the next date of the suit as 5.8.1996 in his diary, he forgot to enter in his diary the name of the Court where the aforesaid suit was pending. He further submitted that on 6.8.1996 when the petitioner checked the record of the case personally in the Court, he found that the matter was listed before the Court on 5.8.1996 when the aforesaid order for proceeding the suit ex-parte against the defendant was passed. It was submitted that the mistake was of the counsel for the petitioner which is bonafide and, therefore, for the mistake committed by his counsel, the petitioner/defendant could not be penalised. He also submitted that the Advocate was also seriously ill and he had gone out of India as per medical advise and, therefore, no intimation could be received by the petitioner from the said Advocate.

9. Counsel for the respondent, however, submitted that the petitioner is a habitual litigant who filed a number of cases and also filed a review application which were all dismissed. It was also submitted that the petitioner had full knowledge of the next date fixed in the suit and deliberately did not appear and is now trying to take advantage of the illness of Shri V.K. Seth, Advocate, although other Advocates are appearing on behalf of the petitioner/defendant.

10. I have perused the order sheet of the aforesaid suit placed on record. It transpires from the aforesaid order sheet that the suit was filed by the respondent as plaintiff on 13.7.1994. Summons were served on the petitioner. However, none appeared on his behalf and accordingly the suit was ordered to be proceeded ex-parte on 11.1.1995. The petitioner, however, filed an application under Order 9 Rule 7 CPC on 11.3.1996.

11. On 8.5.1996, Ms Veena, Advocate appeared as proxy counsel for Shri Ravinder Singh, Advocate for the petitioner. She also filed memorandum of appearance being instructed by the son of the petitioner to appear. On 5.8.1996, none appeared before the Trial Court on behalf of the petitioner and an order was passed for proceeding ex-parte as against the petitioner/defendant.

12. An application under Order 9 Rule 7 CPC was filed on 12.10.1996 by Shri V.K. Shali, Advocate, which was put up on 16.10.1996 and as none appeared on behalf of the petitioner, the said application was dismissed. On 7.11.1996, counsel for the petitioner sought an adjournment to file an application for setting aside the ex-parte order, but the said application was not filed till 30.4.1997 although several dates were fixed in the meantime. The application came to be filed only on 30.4.1997 which was dismissed by the Trial Court on 6.6.1997.

13. The aforesaid facts as disclosed from the records clearly prove and establish that the petitioner was not pursuing the suit with diligence and at every stage default was committed by the petitioner. Be that as it may, I am required to consider as to whether on the facts and circumstances of the case, the petitioner was entitled to have the ex-parte order passed against him set aside.

14. On 5.8.1996, when the matter was called out, the defendant was absent after repeated calls and accordingly the suit was directed to be proceeded ex-parte against the defendant. Subsequent thereto, several dates were fixed, but the petitioner did not file any application for setting aside the said ex-parte order and waited till 30.4.1997 when such an application was filed. Such an application filed after about ten months from the date of passing of the order without any explanation for the delay is not tenable. In order to have an ex-parte order set aside, the petitioner was required to assign the cause for his previous non-appearance. In the instant case, the cause shown by the petitioner is that Shri V.K. Seth, his Advocate was seriously ill and went out of the country and, therefore, the petitioner had no knowledge about the next date. The said stand taken by the petitioner is found to be without any merit as the petitioner was represented by Shri Ravinder Singh, Advocate, in the suit prior to the aforesaid date, namely, 5.8.1996. The impugned order was passed by the Civil Judge after considering the facts and circumstances of the case. He has also given reasons for rejecting the said application which are found to be legal and cogent.

15. I do not find any error in the exercise of the jurisdiction by the Civil Judge which is vested on him and the petition is dismissed, but, without any costs.