New Bank Of India vs M/S. Marvels (India)
2001 Latest Caselaw 690 Del

ORDER

A.K. Sikri, J.

1. This Suit was filed by the plaintiff-Bank for recovery of money against the defendants, who are five in numbers, in the year 1985. The defendants 1, 2 and 5 after service of summons, did not appear and were proceeded ex parte. The defendants 3 and 4 although appeared initially and contested the Suit, stopped appearing after a particular period. They were also proceeded ex-parte decree was passed on 3rd December, 1997. However, the plaintiff has not bee able to enjoy the fruits of this decree and even after 16 years of the filing of the Suit the matter is kept alive by the defendants 3 and 4 (hereinafter referred to as the applicants, for short) as to the present application has been filed under the provisions of Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree dated 3rd October, 1997.

2. Obviously, the question to be determined in this application is as to whether there is sufficient cause for non-appearance of the applicants in the Suit proceedings. The plea in support of sufficient cause raised by the applicants is the one which is often taken, namely, fault on the part of their advocate and it is contended that the applicants should not be made to suffer due to the fault of their advocate. Whether such a plea is available to the applicants in the facts and circumstances of this case needs to be examined.

3. Before embarking on this enquiry it would be appropriate to note certain material dated :-

15.4.85    Suit filed by the plaintiff -
    bank

11.2.86    Written statement filed by
    defendant 3 and 4.

27.5.86    Defendant 1, 2 and 5
    proceeded ex-parte.

17.11.88    Issues were framed.

10.4.92    As nobody appeared default
    notice was sent to counsel
    for both the parties which
    was duly received by the
    counsel for the parties.
    Counsel for the applicant
    received that notice on
    22.5.92. However, counsel
    for the applicants still did
    not appear.

24.4.93    Counsel for the applicants
    inspects the file, so he is
    aware of the proceedings.
    However he does not appear on
    the dates fixed.

6.11.96    Defendants 3 and 4 are also
    proceeded ex-parte on 6.11.96
    vide the following Order:-
    Defendants 1, 2 and 5 are ex
    parte. No one is appearing
    on behalf of defendants 3 and
    4 since 28.8.1991. They are
    proceeded ex parte.

    .....

3.10.97    Ex-parte decree is passed for
    the sum of Rs.6,94,768.60p
    along with pendente lite and
    future interest @ 15% per
    annum as well as cost. Suit
    against defendant no.5 is
    dismissed.

26.9.98    Present application is filed.
 

 

4. It is stated in the application that the applicants had engaged an advocate who without notice to the applicants suddenly stopped appearing from 2nd April, 1991 and did not appear inspite of default notice sent to him. In the meanwhile, whenever the applicants enquired about their case they were informed that the matter is listed for evidence and as and when the applicants were required to be there, an intimation from the Office of the lawyer would be sent. Inspite of those assurances the lawyer did not appear and the applicants suffered ex-parte decree and that such non-appearance of the applicants constitutes sufficient cause as it was bonafide. The applicants came to know about the ex-parte decree only when the applicants received letter dated 27th August, 1998 from the plaintiff-bank on 29th September, 1998 from the plaintiff-bank on 29th September, 1998 calling upon the applicants to pay the amount under decree.

5. Learned counsel for the applicants in support of his submission stated that the applicants should not suffer because of the fault of the lawyer and relied upon the following judgments :-

1. Sagaayam Engineering works versus M/s. Srivatsa Tube Corporation .

2. Shyam Lal Dhar versus M/s. Ply Board Industries .

3. Nivrutti Nana Waghmare versus Narayan Mahadeo Mokal and others .

4. Ranipet Chemicals and Engineering Company Pvt. Ltd. versus Swastik Stainless Steel Stores .

5. Lajpat Rai and others versus State of Punjab and others .

6. Savithri Amma Seethamma versus Aratha Karthy and others .

6. There is no absolute proposition of law that all cases of mistakes on the part of the advocate or pleader would constitute sufficient cause. What is to be seen is as to whether absence of the advocate was bonafide. This is to be examined in conjunction with the conduct of the party who had engaged advocate viz. Whether he was persuing his case diligently or the conduct and approach was so callous that it amounted to negligence. If this is so that non-appearance would not be bonafide and it would not constitute sufficient cause within the meaning of Order IX Rule 13 of the Code of Civil Procedure. Failure of lawyer to appear for no fault of the party is not necessarily sufficient cause for non-appearance of the party (Refer : Guljan Bibi versus Nazir-ud-din Mia reported in AIR 1975 Goa 30). It is necessary for the applicant to establish that the applicants did all that was required under the law to retain the advocate and that the applicants were pursuing the case with due diligence.

7. In the instant case both the applicants and their advocate have not acted with due diligence and the case depicts lack of bonafides. In so far as applicants' lawyer is concerned he stopped appearing from 2nd April, 1991. Admittedly even default notice was served upon the applicants' counsel which was duly received by him on 22nd May, 1992. However, still he did not appear. Not only this he inspected the file on 24th April, 1993 which shows that he had he knowledge of the proceedings and the next date of hearing. Still he chose not to appear. What was the reason for non-appearance of the counsel? No satisfactory explanation for this is forthcoming. It is not stated in the application that the applicants contacted their lawyer after coming to know of the ex-parte decree and tried to find the reasons for applicants' lawyer not appearing. In para 9 of the application, the applicants have simply stated that after coming to know of ex-parte decree they engaged another lawyer to inspect the file and filed the present application on their behalf. It is strange that the applicants after coming to know of the ex-parte decree would not even enquire from their earlier advocate as to why and under what circumstances he stopped appearing and why such ex-parte decree was passed. This shows that everything was not alright on applicants front as well. There is something amiss about which there is no explanation by the applicants.

8. Not only this the conduct of the applicants shows sheer negligence in defending the present case. Their counsel stopped appearing in 2nd April, 1991 and the ex-parte decree was passed only in October 1997. The intervening period was more than six and a half years. In fact, according to them, they came to know of the ex-parte decree only on 29th August, 1998 and therefore for a period of almost 7 years they did not bother to get in touch with the advocate or find the progress of the case.

9. Why the applicants would be satisfied with the alleged representation on the part of their advocate, as stated in the application, that the applicants were not required and they would receive a communication from their advocate as and when they are required to be present in the Court. No proceedings for such a long period would have made them suspicious. From this one can reasonably infer that the story put forth by the applicants that they were in touch with their lawyer and the lawyer had assured them that he would inform that when they are required in he case is an after-thought plea. This explanation does not inspire confidence. The application is not even supported by affidavit of the counsel who was representing them.

10. Therefore, I am of the considered view that the applicants have not been able to make out sufficient ground for setting aside the ex-parte decree. Nodoubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However when it is found that the applicants were mot negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen. In he instant case, no doubt applicants' had engaged lawyer who did not appear. However, the reason for non-appearance is not discernible and it cannot be said that he neglected or failed to appear in the case or there was no justification on the part of the layer not to appear. It also cannot be said that the applicants had done all what was required of them to ensure that their counsel would represent them on all the necessary hearings. The applicants have also failed to show that they were diligent in their pursuit or acted bonafide.

11. This application is accordingly dismissed with costs quantified at Rs.2000/-.