Smt. Shanti Devi vs Shri Ramesh Kumar Gupta & Others
2000 Latest Caselaw 1132 Del

ORDER

Vikramajit Sen, J.

1. Plaintiff has filed the present application under Order IX Rule 4 read with Section 151 of the C.P.C. on behalf of the Plaintiff. The suit was dismissed in default on 31.7.2000 because of the non-representation of the Plaintiff. While dismissing the suit in default I observed that the Plaintiff had admittedly executed four Sale Deeds in favor of the Defendants, who are her son, daughter-in-law and Grandson for the sale consideration of Rs.6,00,000/-, through banking channels. On the previous date of hearing, previous to when the suit was dismissed i.e. on 11.7.2000, the case was adjourned so as to enable the Learned Counsel for the Plaintiff to obtain instructions on whether the Plaintiff would appear before the Court. This order had been necessitated because of the Defendants' assertion that the Plaintiff was now residing with the elder brother of Defendant No.1 and her signatures had not been obtained on the Plaint with her consent and complete knowledge. The Defendants were fully represented on 31.7.2000 when the case was dismissed. Although Rule 4 of Order 9 which has been invoked by the Plaintiff/Applicant, is clearly not applicable, in the interest of justice I have treated the application under Rule 9 of the said Order.

2. The case made out by the Plaintiff is that by a mistake on the part of the Counsel for the Plaintiff the date of hearing of 31.7.2000 was not posted in his diary nor had he informed the Senior Advocate about this date. It is stated that "the matter came to light on going through the cause list, late in the evening on 31.7.2000 itself." It has further been alleged that the Counsel for the Plaintiff was appearing in Court No. 23 on 31.7.2000 and had the matter come to his knowledge, would have definitely appeared in the matter. Mr. U.K. Chaudhary, Learned Senior Counsel appearing for the Plaintiff, has reiterated these grounds in his arguments. In respect of the Plaintiff, it has been alleged that she is an old and infirm lady and has not defaulted willfully. A Medical Certificate dated 14.7.2000 to the effect that she cannot walk and unfit to travel to Delhi has been filed. The veracity of this certificate has been vehemently assailed by Learned Counsel for the Defendants.

3. Mr. Bansal, Learned Senior Counsel appearing for the Defendants, has argued that the Application is mala fide and is liable to be dismissed on the facts disclosed therein. His first contention is that the application has not been signed by a duly authorised person inasmuch as there is no Vakalatnama in favor of Mr. Rajiv Kumar, Advocate and neither the Plaintiff nor any of her duly authorised persons has signed it. He has next contended that the affidavit of Mr. Rajiv Kumar, Advocate, is of little help to the Plaintiff since apart from the factum of his not having been authorised to appear for the Plaintiff, he was not present on 31.7.2000 as is borne out from the Orders itself. He has also stated that the Plaintiff ought to have filed a copy of his Diary in order to substantiate the contentions. Thirdly, it has been argued that even if it is accepted that next date was not noted in the case diary, since instructions had allegedly been received by the Plaintiff and/or her alleged constituted attorney, shortly before 31.7.2000, the counsel ought to have appeared even though the case had not been transferred into Court Diary. Fourthly, he had submitted that there was inexcusable negligence on the part of the Plaintiff's Counsel inasmuch as the Cause List had been looked into only late in the evening of 31.7.2000. Finally, it was asserted that the Plaintiff was well enough to appear personally before this Court the veracity of the Medical Certificate has been assailed. Also keeping in view the fact that it was she who had filed the case in this Court, she was under a special legal obligation to appear whenever directed to do so.

4. Although, the veracity of the Medical Certificate has been seriously challenged, inter alia on the grounds that it ought to have contain the signatures of the Plaintiff herself, I shall accept that she may not have been able to attend the Court on 31.7.2000. This, however, does not exonerate or excuse or render superfluous the need for her advocate and even more importantly her constituted attorney, to appear in Court on that date. Moreover, before an application can be entertained by the Court, it is essential that it should be signed either by the applicant or by her duly constituted attorney. As has been mentioned above, the application has been signed by Shri Rajiv Kumar, Advocate, who has also filed the supporting affidavit. There is no Vakalatnama in favor of Shri Rajiv Kumar. His presence was also not recorded on 11.7.2000 nor has it been stated either in the application or in the supporting affidavit that he was present on that date. This is sufficient reason for the summary rejection of the application.

5. However, as the matter was also argued on the merits, the points raised by the Plaintiff need to be dealt with. In the first place, there is no averment in the application that the Cause List was inspected on the evening of 30th July, 2000 or in the morning of 31.7.2000, and for whatever reason, the advocates for the Plaintiff failed to notice that the case had been listed. This important question ought to have been addressed explicitly. Learned Counsel for the Plaintiff vehemently argued that it is a normal practice that the Cause List is scrutinised at the end of the day. This may well be so. But I find no justification the absence of any explanation for the Cause List not having been checked immediately prior to the date of hearing.

6. Secondly, if there was a lapse of a long time between the two hearings, the failure to note the next date of hearing in the diary may become critical. As has been mentioned above, the case had been listed on 31.7.2000 which is just little over a fortnight from the previous date of hearing. The application itself mentioned in some detail that the counsel for the Plaintiff had sought necessary instructions in the matter and had been informed that the Plaintiff was medically unfit to travel to Delhi. The afore-mentioned Medical Certificate was given by the Plaintiff's attorney to the Plaintiff's counsel. Significantly, neither the name of the counsel nor of the Plaintiff's attorney has been disclosed. There is specific mention that the instructions were to the effect that the Plaintiff would not be in a position to make necessary statement' before this Court on 31.7.2000. The Plaintiff was required, in the event of the suit having been dismissed, to have also stated as to when these instructions were given and to whom. Furthermore, the matter was obviously so fresh that the next date of hearing ought to have remained in the minds of the advocates for the Plaintiff, it is hypothecally possible that the instructions may have been received in such proximity to 31.7.2000 as to make it wholly incredible for the Plaintiff's counsel to forget the next date of hearing. My conclusion is that details of all material facts have deliberately not been mentioned. Learned Counsel for the Plaintiff has orally submitted that Shri Sangram Patnaik, Advocate, was no longer associated with Mr. U.K. Chaudhary & Associates appearing for the Plaintiff. Even if this be so, it was essential for the person signing the application to be fully authorised to do so. It was also equally necessary for the person verifying the veracity of the averments contained in the application to explain the circumstances in which he could state that the facts mentioned in the application were true to his knowledge. The statement that the Advocate for the Plaintiff did not inform the Senior Advocate, presumably Mr. Chaudhary, about the next date is of little assistance. If the Senior Advocate had been retained/engaged for entire case he should have been present, if not this fact is irrelevant. I also find merit in the objection that a copy of the Diary ought to have been produced. It appears to me that the Plaintiff has presumed that the suit would be restored.

7. It is no doubt true that cases should be disposed of on their merits. This does not, however, throw procedural stipulation to the winds. Where a suit is dismissed for non-appearance, it is incumbent on the Plaintiff to disclose sufficient reasons for their non-appearance, which should not be mala fide. In my considered view, even if it is ignored that the application has not been filed by an authorised person, no sufficient ground has been disclosed for the restoration of the suit. It is also necessary that the applicant should dispel any doubts as to whether the non-appearance was bona fide. As already adumbrated at the beginning of this order, the Plaintiff had executed four registered Sale Deeds in favor of her immediate family. The fact that she had started residing in Bombay with her other son after filing the suit in Delhi lends sufficient weight to the submission made by Learned Counsel for the Defendant that the entire litigation has been engineered by her elder son with whom she is living. While suits call to be liberally restored where the non appearance was for sufficient reason (which would necessary imply that it was bona fide) it is a jural duty to give finality to order and not set them at naught for the asking. Liberality is a luxury which can be ill afforded, with pendency mounting monumentally. In these circumstances, especially since no sufficient reason has been shown for non-appearance, I am also of the view that the Plaintiff and/or her attorney and her advocate may have intentionally not appeared on 31.7.2000 so as to prolong the litigation.

8. For all these reasons, the application is without merit and is dismissed with costs of Rs.3000/-.