Naimat Kaur Anand & Ors. vs M/S. Decon Company
1999 Latest Caselaw 883 Del

ORDER

Vikramjit Sen, J.

1. Both these applications have been filed for setting aside ex-parte decree dated 15.9.1995, can be disposed of together. In the application filed under Section 5 of the Limitation Act, 1963 it is set out that the Written Statement had been filed and issues had also been framed. It is stated in the application under O.9 R.13 that the Defendant/Applicant came to know of the ex-parte decree on 7.11.1996. It is further averred in this application that on 19.10.1996 the Applicant was out of station and Shri P.M. Singh, an employee of the Defendant Company was present in the showroom when the Bailiff arrived there for executing the ex-parte decree, and that a cheque was handed over by Shri P.M. Singh, an employee of Decon Lighting Pvt. Ltd. on presentation, this cheque was dishonoured as payment had been stopped by the Judgment-Debtor/Applicant/Defendant. The only reason for setting aside the ex-parte orders is contained in para 2 of the application which reads as under :

"That the non-appearance on behalf of applicants/defendants was on account of some communication gap between the applicant/defendants and the counsel resulting into an ex-parte decree against the applicants."

2. The application under Order 9 Rule 13 (I.A.12551/96) which was supported by the Defendant's affidavit dated 3.12.1996, appears to have been drafted and made ready on 29.11.1996, as is evident from the date on the Index and the application for urgent hearing. No reason for this delay, albeit of five days, has been offered.

3. It appears that almost eight months later it was discovered that an application under Section 5 of the Limitation Act, 1963 ought to have been filed in order to seek a condensation of delay in filing the application under O. 9 R. 13. In para 5 of the application filed under Section 5 of the Limitation Act it is stated :-

"The Applicant/Defendant states that it had engaged Advocates to appear and defend the case on behalf of the Applicant/Defendant. However, due to some reason they failed and neglected to appear in the Suit, even though written statement had been filed by the Applicant/Defendant".

4. In para 7 of this application for condensation of delay it is thereafter stated :

"Since there was no communication from the Advocates of the Applicant/Defendant, the Applicant/Defendant presumed that the Suit was continuing in this Hon'ble Court, knowing the delay, that is experienced in disposal of the Suits in Courts".

5. I have already mentioned that the application under Order 9 Rule 13 mentions that the date when the Applicant learnt of the passing of the exparte decree was 7.11.1996. Para 9 of the application filed for condensation of delay sets up a totally different case. It is reproduced below :-

"The Applicant/Defendant states that in these circumstances, since there was no communication from the Applicant/Defendant's Advocates, the Applicant/Defendant was shocked and surprised when on 19th October, 1996 the Plaintiff/Non-Applicant together with the Bailiff came to the premises of the Applicant/Defendant to attach the property in respect of the ex-parte decree passed by this Hon'ble Court".

6. In para 12 of the application for condensation of delay it is stated that Mr. Dilip Vasudevan, Advocate was appointed by the Applicant in place of its earlier Lawyer. At the time of hearing it was asserted by the Plaintiff that Mr. Dilip Vasudevan uses the Chamber of previous Advocate who has been accused of being non communicative and negligent in appearing in the case and operates from No. 135, Lawyers Chamber, High Court of Delhi. This fact was not denied but learned counsel for the Defendant stated that it is only his address and that he is an independent lawyer. A perusal of the Index and urgent application will show that the chamber number has been changed from 135 to 326 and that the name of Mr. Vasudevan has been overwritten on the names of previous Advocates of the Defendant. Overbiously the stand taken by the Plaintiff is correct that a new face of an Advocate has been presented in order to give credence to the facts stated in these applications.

7. Learned counsel for the Defendant/Judgment Debtor has relied on the decisions of Rafiq and another Vs. Munshilal and another, ;

Union of India and another Vs. M/s. Vijay Construction Co., Meerut, AIR 1981 Delhi 193; Shyam Lal Dhar Vs. M/s. Ply Board Industries, and Ranipet Chemicals & Engineering Co. Pvt. Ltd. Vs. Swastik Stainless Steel Stores, .

8. The judgments of the High Courts are founded on the Supreme Court decision and, therefore, do not call for being dealt with individually. In Rafiq's case (supra) no doubt the Supreme Court had observed that "once a party has engaged the counsel it could be allowed to assume that its interest would be safeguarded by its Advocate". However in that case the party appears to have been illiterate and of a rural background. The observation of the Apex Court was obviously made against this backdrop. Rafiq's case (supra) came to be considered in a subsequent judgment of the Apex Court in the case of Salil Dutta Vs. T.M. & M.C. Private Ltd., .

In that case the Court first of all took notice of the fact that the Defendant was a Private Limited Company and that the persons incharge of it were not "rustic villagers" nor "innocent illiterates unaware of Court Procedures". It also observed that there were several contradictions in the deposition which showed that the whole story was a fabrication. The previous decision in Rafiq's case was dealt with in the following words :

"The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an exparte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq must be understood in the facts and circumstances of that case and cannot be understood as an absolute roposition".

9. Applying the pronouncements of the Supreme Court to the facts of the present case, it is my conclusion that both these applications deserve to be dismissed. In the first place the applicant is a businessman, apparently running one commercial establishment as a sole proprietor and the other as a Director of a Private Limited Company. As stated in the applications, he had himself made an assumption, based on the delay experienced in disposal of suits in Courts, that even though no communication had been received from his Advocate, it was presumed by him that the suit was continuing. Obviously this assumption, however misplaced it may have been, was of an intelligent and educated litigant. Secondly, the discrepancies in the shifting stand of the Applicant cannot be ignored. In the application forsetting aside the ex-parte decree it was said that there was some communication gap, but in the application for condensation of delay this was transformed into the reasons given immediately above, that is, the failure and negligence of his advocate. Furthermore whereas in the first application under Order 9 Rule 13 it was stated that knowledge of the ex-parte decree was gained on 7.11.1996, in the second application for condensation of delay it has been stated that this knowledge was gained on 19.10.1996, when the Bailiff visited the Defendant's premises. These contradictions belie the stand taken by the Applicant. Thirdly, as I have already set out above, the first application under O. 9 R. 13 appears to have been prepared on 29.11.1996 but was filed only on 3.12.1996 when, perhaps, the Defendant made himself available for signing the application and swearing an affidavit. The negligence which brought about the passing of an ex-parte decree obviously continued thereafter in respect of the filing of the application for setting it aside. It is also difficult to believe that the Defendant changed his counsel and appointed Mr. Vasudevan of the same chamber as his previous Advocate. This appears to have been done only cosmetically and with a view to shifting the blame of negligence on to the previous counsel. It is too much of a coincidence that the new counsel found by the Applicant was located in the same chamber, that too when, if the Defendant's story is to be believed, he had been miserably let down by the previous counsels. The story is totally incredible.

10. The negligence and delay does not end here. Section 123 of the Limitation Act prescribes that the application for setting aside a decree should be filed within thirty days of its passing. This position must have been known to the Defendant when the application under O. 9 R. 13 was filed. Although one year and forty nine days had passed (as per the computation of the Defendant) the application under Section 5 of the Limitation Act did not accompany the application under O. 9 R. 13, and this must be held to be fatal to the case put forward by the Defendant/Judgment Debtor.

11. In these circumstances, however keen a Court may be to decide a lis with the active participation of both adversaries and however biased it may be in favour of setting aside ex-parte orders and thereby facilitating the hearing of all parties before the Court, this case demonstrates so much negligence, that interference of the Court for recalling and setting aside the decree is not called for. It is most convenient to shift the blame on lawyers, and in most cases this may even be justified, but the manner in which the fresh counsel was appointed does not go to show that the version put forward by the Defendant is worthy of belief and acceptance. The application under O. 9 R. 13 was liable to be rejected on the short ground of limitation since the application under Section 5 did not accompany it. However in view of the careful and painstakingly detailed discussion concerning the merits, of the said application under Order IX Rule 13, both the applications are dismissed with costs of Rs. 5000/-.