Kishore Jain vs The State Of Himachal Pradesh & ...
1999 Latest Caselaw 584 Del

ORDER

Vikramjit Sen, J.

1. Both these applications were heard together and can be conveniently disposed of by a single order.

2. A suit was filed in this Court claiming recovery of Rs.13,73,718.78 p. being the amount allegedly due to the plaintiff against the 14th, 15th and 16th draws of HIM LAXMI Weekly and HIMLAXMI Bumper for the year 1985. A Written Statement was filed in which the territorial jurisdiction of this Court was not accepted. It is the case of the defendants/applicants that their Advocate had informed them that the case would come up for evidence after six or seven years of the filing of Written Statement and that the Advocate would inform them when the case was listed for this purpose. It is further stated that the applicants had addressed letters to their Advocate seeking advice on the progress of the case, in response to which, by his letter dated. 13.1.1993 the Advocate had informed them that he would make enquiries from the High Court and inform them of the position of the case in due course. The applicants have averred that this was not done. It is further stated by them that they learnt of the passing of the ex parte decree only on 11.3.1997 when they received a letter from Shri O.P. Ahuja, Advocate, in this regard. After making necessary enquiries, the two appli-

cations, one for condensation of delay in filing the application under Order 9, Rule 13 and the other under order 9, Rule 13 were filed on 7.4.1997. Notices on these applications were issued by the Court on 10.4.1997.

3. The plaintiff/decree-holder has specifically traversed all the averments made in these applications and has perfunctorily denied them, stating that the applicants should be put to strict proof of the same. Beyond this nothing has been stated in the reply which would warrant a direction by the Court to the applicants to prove the statements made in these applications.

4. Learned counsel for the plaintiff argued that each days delay should be accounted for by the applicants and this is not been done. This rigorous requirement is now no longer expected to be meticulously met, by various court pronouncements, and the explanation given has to considered in the totality of the fact disclosed.

5. Jurisdiction of courts to try disputes is,in a large measure determined by the situs of the defendant. In this case a perusal of the plaint itself would show that defendants 1 and 2, against whom the relief is substantially asked for, are located in a different State i.e. Himachal Pradesh. Considering the case put forward in these applications, and the challenge to the territorial jurisdiction of this Court, and that the applicants/defendants were dependent solely on the Advocate appointed in this case and did not have regular offices in Delhi, it is very likely that they would not have known that the case had been called on for hearing, inter alia, on 15.10.1992, when they were proceeded ex parte. Their nonappearance could not have been intentional. I find that sufficient cause for their non-appearance has been shown.

6. Keeping in view the fact that a decree has been passed and that there were a number of hearings in the matter after the defendants were proceeded ex parte, the ends of justice would be served if the defendants are made to sufficiently compensate for the delay caused by their non-appearance. In these circumstances I.A. No. 3295/97 is allowed and the delay in filing the application under Order. 9 a Rule.13 is condoned. For the reasons disclosed in the application under Order 9 Rule 13 I.A. 3296/97 is also allowed subject to the payment of Rs. 10,000/- as costs. The defendants shall deposit Rs. 3,000/- with the Delhi Legal Services Authority and shall pay a sum of Rs. 7,000/- to the plaintiff within two weeks from today.

7. Both the applications stand allowed accordingly.