Twinkle Industries vs Municipal Corporation Of ...
2002 Latest Caselaw 2038 Del

JUDGMENT

C.K. Mahajan, J.

I.A. No. 12785/2000

1. By way of this application, the defendant seeks condensation of delay of 540 days in filing the application being I.A. 12/35/2000 under Order 9 Rule 13 CPC for setting aside the order dated 8.8.1997 and subsequent order dated 2.9.1998.

2. The applicant claims to have knowledge of the ex parte decree passed by this Court on 6.5.1999 when an inspection of the file was carried out. It was on this date that the applicant learnt that it had been proceeded ex parte on 8.8.1997 and an ex parte decree had been passed on 2.9.1998. The applicant contends that the application for setting aside of the ex parte order and the decree was sent to the defendant Corporation at Visakhapatnam for signatures. The application was signed on 6.7.1999. It was sent to the counsel for the applicant by post. The application is stated to have been received by the clerk of the counsel for the defendant who is stated to have misplaced the application and did not inform the counsel about the receipt of the application. In the month of May 2000, the defendant enquired about the status of the application and the counsel claims to have informed them that he had not received the application. It is further stated that the clerk who had received the application has left the services of the counsel for the defendant. The application was located in October 2000.

3. Counsel for the applicant contends that grave injustice would be caused to the defendant if the delay in filing I.A. 12735/2000 is not condoned.

4. Learned counsel for the defendant places reliance on the decision of the Supreme Court in Jai Pal Singh and Ors. v. Chief Settlement Commissioner and Ors. , G.P. Srivastava v. R.K. Raizada and Ors.

and M.K. Prasad v. P. Arumugam and contends that the applicant ought not to be penalised on account of its non-appearance as the object of the Court to exercise discretion is to advance substantial justice. Even if the applicant was not vigilant, he ought not to be non-suited/ousted from the litigation as the stake of the parties is relatively high. The plaintiff can be compensated by awarding appropriate and exemplary costs.

5. The application is opposed by the plaintiff. It is contended that the applicant does not make out sufficient cause for condensation of delay in filing the application under Order 9 Rule 13. There is delay of more than two years from the date of the decree. The applicant has also made vague and contradictory statements in his application and this conduct does not inspire confidence. The defendant corporation had knowledge of the decree even prior to 6.5.1999 and it has failed to explain the delay in approaching this Court. The explanation offered lacks in material particulars, concocted, is an after-thought and ought to be rejected. A valuable right has accrued to the plaintiff who will suffer loss, injury and grave injustice if the applications are allowed at this stage.

6. I have heard learned counsel for the parties.

7. From a perusal of the Court record, it transpires that summons of the suit were served on the defendant on 6.8.1996. Despite service, the applicant did not put in appearance. Written statement was not filed. On 8.8.1997, the defendant was proceeded ex parte. Plaintiff filed ex parte evidence by way of affidavit. Documents were exhibited on 28.4.1998. The matter was listed for arguments on 2.9.1998. On that day, the suit was decreed.

8. While construing the provisions of Section 5 of the Limitation Act, the Court has to keep in mind that discretion has to be exercised in a manner so as to advance substantial justice. The word "sufficient cause" ought to receive liberal construction when no negligence or inaction is imputable to the applicant. The applicant must also show sufficient cause for excusing the delay.

9. The Court has also to see whether there was negligence, deliberate inaction or lack of bona fides on the part of the applicant seeking condensation of delay. Law of limitation has been enacted to serve the interest of justice and not to defeat it. The facts of each case would have to be taken into account while recording a finding whether or not there was sufficient cause shown by the applicant for setting aside of the ex parte order.

10. There is admittedly a delay of about 540 day in filing the application for setting aside the ex parte order and the subsequent decree. The signed application is stated to have been returned to the counsel in Delhi on 6.7.1999. The applicant apparently did not pursue the matter. No attempt was made to enquire about the progress of the case. It was only after a lapse of more than 10 months that the defendant corporation woke up and wanted to know the status of the matter. It is also admitted that it took about five months for the counsel to trace the application in his office.

11. There is no force in the submission of the applicant that the application was misplaced by the clerk and the counsel was not informed about the receipt of the application. There is no material on record to support this contention nor has the affidavit of the clerk has been filed nor any correspondence to this effect has been placed on record with regard to the dispatch of the application, its signatures and return to the counsel.

12. The application is support by the affidavit of the present clerk. I am unable to understand as to how the said clerk could swear to an affidavit in relation to the facts which were not within his knowledge as he was not working with the counsel at the time when the application was received and misplaced. It is well settled that any person who is conversant with the facts of the case is competent to depose. The affidavit does not inspire confidence and has to be rejected.

13. The applicants slept over the matter for over 10 months. In view of the urgency of the situation, the applicants made no attempt to get in touch with the counsel and confirm about the receipt of the application and the steps taken for filing the same in Court. The aforesaid factors show lack of bona fides on the part of the defendant corporation as well as the counsel.

14. The scope of Section 5 of the Limitation Act has been considered by different courts including the Supreme Court and the proposition is well settled that a liberal approach is to be adopted and sufficient cause must be made out in a pragmatic manner and a strict approach calling upon a party to explain each day's delay is to be avoided. But it does not mean that in all eventualities the applications under Section 5 of the Limitation Act and under Order 9 Rule 13 CPC are to be allowed. Justice must be imparted to the litigants but dereliction of duty of the counsel and the slackness on the part of the litigant ought not to be taken lightly. The applicant is required to show that he was prevented by sufficient cause from appearing when the suit was called for hearing. Unless sufficient cause is shown for the absence of the defendant on the date of trial, the Court has no power to touch an ex parte decree. To my mind, the applicants have failed to show that they were prevented by any sufficient cause from appearing on the date when the ex parte decree was passed. The delay in filing the application has not satisfactorily been explained.

15. On going through the entire facts and circumstances of the case and the pleadings of the parties, I am of the considered opinion that there is total carelessness, negligence and/or laches on the part of the defendant in the present case. The applicant is apparently not vigilant nor did it take any steps for getting the order for proceeding the suit ex parte as against the defendant set aside at the earliest. No cogent explanation has been given by the applicant for its inability to file the present applications earlier than the date they were filed. There is also no pleading to the effect that the applicant was vigilant and prosecuted the matter with due diligence.

16. I am satisfied that the applicant has not been able to make out sufficient cause for explaining the delay in filing the present application. The application, therefore, stands dismissed.

I.A. 12735/2000

17. By way of this application, the defendant seeks setting aside of the order dated 8.8.1997 by which the defendant was proceeded ex parte and subsequent order dated 2.9.1998 passed by this Court decreeing the suit against the defendant/applicant.

18. In view of the dismissal of I.A. 12785/2000 under Section 5 of the Limitation Act, this application is also dismissed.

I.A. 8061/2001

19. By way of this application, the applicant seeks stay of the execution proceedings being E.P. No. 88 of 2000 pending before the District Judge, Vishakapatnam.

20. In view of the aforesaid, this application is infructuous and is dismissed as such.