Ramon Services Pvt. Ltd. vs Shri Subhash Kapoor & Others
1999 Latest Caselaw 810 Del

ORDER

Dr. M.K. Sharma, J.

1. The present appeal arises out of order dated 3.4.1999 passed by Additional District Judge in Suit No. M-148/1998. The respondent filed the aforementioned suit seeking for a decree for eviction. In the said suit issues were framed on 8.5.1998 and the suit was directed to be listed on 26.8.1998 for recording evidence of the plaintiff. On 26.8.1998 suit was ordered to be proceeded ex parte as against the defendants and was listed on 14.9.1998. However, on that date also no steps were taken by the defendants. Subsequent thereto an application was filed under Order 9 Rule 7 of the Code of Civil Procedure which was dismissed on 13.10.1998 and thereafter the trial court decreed the suit on 13.11.1998. The defendants thereafter filed an application under Order 7 Rule 13 of the Code of Civil Procedure praying for setting aside ex parte judgment-decree dated 13.11.1998 . In the said application, a copy of which is placed on record, it was stated by the defendants that the defendants were advised on 24.8.1998 by their counsel telephonically that due to Delhi Bar Association resolution none of the advocates would be appearing in the matter. It was averred that as the defendant is based in Mumbai they failed to attend the matter on 26.8.1998 when the suit was directed to be proceeded ex parte and then the evidence of the plaintiff was recorded and the suit was directed to be listed on 14.10.1998. It is stated that although the Director of the Company came to the court on 14.9.1998 he was informed that the matter was listed only for orders and accordingly the Director returned to Mumbai after appointing Mr. Balbir Singh as attorney to conduct the matter on behalf of the defendant. The said attorney enquired about the matter and inspected the file on 9.10.1998 and then moved an application under Order 9 Rule CPC which was dismissed as not maintainable on 13.10.1998 and the judgment and decree was made on 13.11.1998 and accordingly the aforesaid application was filed in the suit for setting aside ex parte judgment and decree.

2. The said application was contested by the plaintiff contending inter alia that there was no sufficient cause for the defendants for their nonappearance on 26.8.1998. It was further contested on the ground that the tenanted premises in respect of which the suit is instituted is in Delhi and the defendant also claims to have an office in Delhi having staff to look after it. The Additional District Judge considered the aforesaid application and by the impugned order dismissed the said application holding that no bonafide and reasonable ground has been put forward by the defendants or their counsel for non-appearance on 26.8.1998.

3. I have heard Ms. Salwan appearing for the appellant and Mr. Makhija appearing for the appellant and Mr. Makhija appearing for the respondents. Ms. Salwan submitted that the trial court committed an error in holding that several lawyers were representing the defendants, for all the counsel who have signed the Vakalatnama belong to one legal firm. She also submitted that there was only one single default on the part of the defendants/appellants i.e. on 26.8.1998 and that for such one single default such harsh action was not called for. She also submitted that in view of the boycott call given the Bar Association, counsel could not appear before the court and therefore, the client should not be penalised for the fault the counsel.

4. Mr. Makhija, on the other hand, appearing for the respondent submitted that there was not only negligence and laches on the part of the defendants in contesting the matter but there was also default in appearing in the court on 26.8.1998, and also misconduct on the part of the defendant in manufacturing documents for the purpose of making out a case. Counsel drew my attention to the letter dated 24.8.1998 alleged to have been written to the petitioner by the law firm M/s. B.c. Dass Gupta & Co. Referring to the said document the counsel stated that the said letter does not contain any serial number whereas from the latter at Annexure A-2 dated 28.8.1998 it would be apparent that the said law firm used to issue letters to the parties only after giving serial number to such letters. He also relied upon the decisions of the Supreme Court in Mahabir Pershad Singh Vs. Jacks Aviation: 1998 RLR (SC) 644.

5. The aforesaid suit was listed for recording evidence of the plaintiff on 26.8.1998. There was a boycott call given for that day by Delhi Bar Association. It is alleged that on 24.8.1998 the counsel informed the defendant telephonically that due to the aforesaid boycott call they are not appearing in the matter. Even accepting the aforesaid stand of the defendants, it is crystal clear that the defendants came to know on 24.8.1998 that the counsel is not appearing in the suit and therefore, there should have been extra care and caution on the part of the defendants to appear in the suit on 26.8.1998. It is also the case of the defendants that they have an office in Delhi although at the stage of filing the aforesaid application the stand was that they did not have any office in Delhi. In the written statement the defendants have not taken any plea that they did not have any office in Delhi and therefore, there could be no plausible reason on the part of the defendant for non-appearance although it had knowledge that the counsel was not appearing. As no steps were taken by the defendants on 26.8.1998 it was ordered that the suit would proceed ex parte as against the defendants and thereafter the evidence of the plaintiff was recorded and the matter was directed to be listed on 14.9.1998. On the own pleadings of the defendants the Director of the company came to the court on 14.9.1998 but he did not take any steps in the matter and only appointed an attorney to look after the case on behalf of the defendants. The said attorney inspected the file only on 9.10.1998 and filed an application under Order 9 Rule 7 CPC thereafter. The said application was not maintainable and was accordingly dismissed on 13.10.1998 and the judgment and decree was made on 13.11.1998. The aforesaid facts conclusively indicate that there has been negligence and laches on the part of the defendants in prosecuting the case.

6. The trial court, while disposing of the aforesaid application filed under Order 9 Rule 13 CPC has taken note of the defenses put up by the defendants for their inability to appear on 26.8.1998 and on consideration thereof found that the said defenses and grounds were non-existent and baseless and thus held that there was no bonafide or reasonable ground put forward by the defendants or their counsel for non-appearance. The trial court also referred to the contention that the suit property has been let out by the defendants to M/s. Wills International Limited who claimed in their application under Order 1 Rule 10 CPC that the premises in question had been let out by the defendants to them under an agreement at a monthly rent at Rs. 45,000/- without disclosing that the defendants themselves were tenants. There is a set of Advocates appearing on behalf of the defendants and atleast two Vakalatnamas were filed by advocates appearing for the defendants. None of the Vakalatnamas had been withdrawn by the Advocates at any stage. Therefore, the ground that one of the counsel had informed on 24.8.1998 that it would not be possible for the said advocate to appear and represent on 26.8.1998, did not make out a case in favour of the defendants for setting aside the ex parte decree on the ground of inaction on the part of the lawyer. The letter stated to have been written by the law firm to the defendants on 24.8.1998 does not bear any serial number and therefore, the very fact of issuance of the letter is doubtful.

7. In my considered opinion, the proposition of law as laid down in the decision of the Supreme court in Mahabir Pershad Singh case (supra) squarely applies to the facts of the present case. There was negligence and total lack of bonafide on the part of the defendants and therefore, they are not entitled to any relief in the present appeal. The appeal stands dismissed as without any merit leaving the parties to bear their own costs.