Delhi High Court
Black Diamond Glassware P. Ltd. vs Kusum Lata Gupta And Ors. on 13 October, 2003
Equivalent citations: 2003 VIIAD Delhi 318, AIR 2004 Delhi 88, 108 (2003) DLT 129
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
1. This petition is directed against the judgment and order of he Civil Judge, Delhi, in Suit No. 596/1995 dated 25th January, 1997, dismissing the application of the petitioner for setting aside the order dated 12th September, 1996 by which the defense of the petitioner was struck off.
2. In order dated 29th July, 2002, it was recorded that the petitioner had made an offer to pay 50 times the cost of Rs. 200/- imposed, that remained unpaid. The matter was then listed on 27th May, 2003, when no one was present. Thereafter the matter was again listed on 25th July, 2003, when nobody appeared for the respondents - Kusumlata Gupta and ORs. The matter was again listed for 22nd September, 2003, when again no one appeared for the respondent. It was adjourned to 24th September, 2003. Thereafter the matter has been on board for regular hearing, but nobody has chosen to appear on behalf of the respondents.
3. Facts of the case leading to this petition are that vide order dated 12th September, 1996, court set aside ex-parte proceedings subject to cost of Rs. 200/-, to the plaintiff and Rs. 1000/- to be deposited with the Delhi Legal Aid and Advise Board. On 12th September, 1996, the petitioner was not represented before the court and, therefore, his defense was struck off. The petitioner moved an application under Order 47 read with Section 114 for review of this order, which application was dismissed vide order dated 25th January, 1997. Aggrieved thereof the petitioner has filed this petition.
4. The case of the petitioner before the court was as under :
"The matter was listed for 12th September, 1996, when the defendant No. 1 did not appear and because of non-appearance of defendant No. 1, defense of applicant/defendant No. 1 was struck off. It is stated by the applicant/defendant No. 1 that she is a patient of diabetise and other ailment and has not been keeping well and due to certain family problems, the applicant had to sell her house and shifted to another house and due to both these facts, defendant No. 1 could not contact her counsel and in fact lost her all connection with her counsel and consequently, she could not comply with the orders of the court. It is further stated in the application that due to the change of the address of defendant No. 1, her counsel could not contact defendant No. 1 and could not comply the orders of the court and after recovery from illness, defendant No. 1 contacted her counsel i.e. On 6th October, 1996, when all the facts and circumstances were disclosed to the counsel and accordingly, the present application is being moved by the applicant/defendant No. 1 without any further delay. It is further stated that non-appearance and non-compliance of the order of the court by defendant No. 1 is not intentional but because of the facts as stated hereinabove and she is willing to comply with the orders of the court and the valuable rights of defendant No. 1 are at stake. Therefore, in the interest of justice, the order dated 12th September, 1996, be reviewed. An affidavit in support has been filed by the applicant/defendant No. 1. "
5. The aforesaid application was contested by the respondent herein who submitted that the petitioner herein had been deliberately flouting the orders of the court and even otherwise the order did not warrant a review. The trial court after hearing counsel for parties was pleased to hold that the defense had been struck off under Section 35-B for non-payment of costs, and, therefore, there was no warrant to show any indulgence or leniency to set aside the ex-parte order.
6. I have heard learned counsel for the petitioner and, as already noted above, nobody has put in appearance on behalf of the respondent. It is submitted by learned counsel for the petitioner that even if the petitioner had not deposited the costs and had remained absent on a particular date he could, at best, have been proceeded with ex-parte but his defense could not have been struck off. He relies upon judgment of the Supreme Court in Prakash Chand v. Janki Manchanda, . He also relies upon judgment in Innovation Apartments Flat owners Association, Secundrabad v. M/s . Innovation Associates, Secundrabad, ; Jamia Masjid Magadi Town v. Karnataka Board of Wakfs, Bangalore and Others amongst otheRs. He has also relied upon a judgment of this Court in Preeti Arora v.Vijender Singh Chaudhary, 2003 III AD (Delhi) 45.
7. Having carefully gone through the judgment under challenge, I am of the opinion that the law as enunciated by the Supreme Court in Prakash Chand's case (supra) still holds the field and nothing contrary has been placed before me to show otherwise. In that view of the matter, I am of the opinion, that even if the petitioner did not appear on a particular date he could, at best, be proceeded with ex-parte but his defense could not have been struck off. Further, relying upon a judgment of this court in Preeti Arora's case (supra), I permit the petitioner to deposit a cost of Rs. 10, 000/- (rupees ten thousand) payable to the plaintiff in the suit and, on payment of the cost, petitioner shall be entitled to enter defense. With this the impugned order dated 25th January, 1997 shall stand set aside.
CM M(M) 261/1997 is allowed accordingly.
