P.S. Prashad & Family vs Bharat Bijlee Limited
1999 Latest Caselaw 99 Del

ORDER

Mukul Mudgal, J.

1. The impugned order dated 3.10.1997 was passed by learned Additional District Judge. The petitioner herein filed a suit for recovery of the suit premises against the respondentdefendant. Issues were framed on 4.4.1996 and the case was listed for plaintiff's evidence on 4.9.1996 and again on 20.1.1997. On that date, neither the defendant nor the defendant's counsel appeared and the court ordered as follows : "...... Shri Iqbal Singh, Proxy counsel for Shri Jawahar Lal. Mr. Iqbal Singh, Proxy Counsel states that he had received telephone call from his house that he is unable to attend the court and that he is not feeling well. Plaintiff and Shri Y.K. Chaudhri, two witnesses are present and examined. Since no authorised representative of the Defendant is present, crossexamination of witnesses deferred on the conditional cost of Rs. 2,000/ out of which Rs. 1,000/ will be paid to Legal Aid, Patiala House, New Delhi. To come up on 11.3.1997."

2. Even on 11.3.1997 neither the defendant nor the counsel for the defendant was present when the matter was called and the case was directed to be put up for exparte arguments on 2531997. On 2531997, one Shri Jawahar Lal as the advocate for the defendantrespondent filed an application under Order IX Rule 7 of the Civil Procedure Code supported by his affidavit for setting aside the order dated 11.3.1997. By an order dated 3rd October 1997 the application under Order IX, Rule 7 of the Civil Procedure Code to set aside the order dated 11th March, 1997 was dismissed by the Trial Court. This order dated 3rd October, 1997 thus became final. On 491997 another application under Order IX, Rule 7 of the Civil Procedure Code for setting aside the court's order dated 11.3.1997 was filed. The cause set out in the second application for setting aside the order dated 11th March, 1997 was substantially the same as set out in the earlier application dated 25th March, 1997. The only difference was that now the application was accompanied by a vakalatnama dated 3rd September, 1997 in favour of the advocate Shri Jawahar Lal. The above application dated 4.9.1997 was heard by the Additional District Judge who found by its impugned order dated 3rd October, 1997 that the cause made out in the latter application regarding delay in appearing in Court on 11th March, 1997 can hardly be taken to be a sufficient ground, yet the application was allowed solely on the ground that the defendant was now displaying eagerness to defend the suit. This order is impugned in the present revision petition. It is obvious that the respondent have displayed a casual and negligent attitude in defending the above proceeding. This conduct could not justify the impugned order in its favour particularly when the impugned order itself records a finding that no sufficient cause it made out. Even in this court none has appeared on behalf of the respondent.

3. The learned counsel for the petitioner relied upon a judgment of the Hon'ble Supreme Court in Arjun Singh Vs. Mohindra Kumar reported as AIR 1964 SC 993, wherein it was held as under: "The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order is vital. If the prin ciple of res judicata is applicable to the decision on a particu lar issue of fact, even if fresh facts were placed before the Court, the bar would continue to operate and preclude the fresh investigation of the issues, whereas in the other case, on proof of fresh facts, the court would be competent, nay would be bound to take those into account and make an order conformably to the facts freshly brought before the court."

4. In the above case, the Hon'ble Supreme Court was dealing with a question whether the application for setting aside an order under Order IX, Rule 7 was barred by res judicata by reason of the decision of the same matter in an earlier proceedings under Order IX and Rule 7 of the Civil Procedure Code.

5. In the present case it is clear that the above judgment applies to the facts of the present case particularly when the earlier and the latter application are substantially the same and the only difference is the fact that the petitioner additionally pleads that the earlier application was dismissed on the ground that the vakalatnama was not produced and in the latter application the vakalatnama had been produced and annexed.

6. Accordingly the impugned order dated 3rd October, 1997 is set aside particularly in view of the fact that the conclusions in the impugned order are not warranted by the findings to the effect that a sufficient ground for setting aside the ex parte order was not make out. Besides the display of belated eagerness to defend the suit is also not a valid ground for allowing the application under Order XI, Rule 13 of the Code. Accordingly, the revision petition is allowed and the order dated 3rd October, 1997 is set aside. There shall be no order as to costs.