Delhi High Court
Nangal Electric Co. vs The Municipal Corporation Of ... on 4 January, 2006
Author: B D Ahmed
Bench: B D Ahmed
JUDGMENT
Badar Durrez Ahmed, J.
1. IA 19/2006 is an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 for setting aside the ex parte decree dated 22.02.2005. The said application has been filed on 19.12.2005 and is obviously much beyond the period of 30 days which is permitted for such an application. As a result IA 20/2006 has also been filed under Section 5 of the Limitation Act, 1963 seeking condensation of delay in filing the application under Order 9 Rule 13 for setting aside the ex parte decree dated 22.2.2005.
2. The learned counsel for the plaintiff is present in court and accepts notice in both these applications and submits that he is willing to argue this matter straightaway. As such both these applications were taken up for disposal.
3. Before the application under Order 9 Rule 13 is taken up on merits, the application for condensation of delay i.e. IA 20/2006 has to be dealt with. In the condensation of delay application, the defendant has stated that it was proceeded ex parte by virtue of an order passed by this court on 5.2.2004 because the counsel for the defendant had not put in appearance on that date. However, according to the defendant, she did not know about the orders passed on 5.2.2004 nor about the ex parte decree dated 22.2.2005 till the plaintiff approached the concerned department of the defendant corporation. It must be noted that no date has been specified as to when the plaintiff approached the concerned department of the defendant corporation. It is then the case of the defendant that the department ?immediately? contacted the Law Officer who appointed a counsel for filing the application for setting aside the ex parte orders and ex parte decree. It is then stated that the said counsel returned the files on 16.11.2005 with the advice that the same counsel who had been appointed earlier should file the application for setting aside the said order and decree. However, the application does not indicate as to what is meant by the word ?immediately?. It is then stated in the application that the counsel applied for certified copies of the ex parte decree on 28.11.2005 which was ultimately obtained on 6.12.2005 and thereafter, the present applications were filed on 19.12.2005.
4. Interestingly, the application itself admits that there is gross delay in moving the application for setting aside the ex parte orders and decree. However, it is submitted that it was due to the mistake of the clerk of the counsel of the MCD and that the delay is neither willful nor intentional but due to these circumstances.
5. The learned counsel for the parties were heard. In my opinion the application filed by the defendant is vague and bereft of material particulars. It is not explained as to why the defendant's counsel did not appear on 5.2.2004 when the orders were passed for the defendant to be proceeded with ex parte. It is not explained as to why nobody took any interest in pursuing the matter between 5.2.2004 and 22.2.2005 when the ex parte decree came to be passed. It is also not stated as to when the plaintiff approached the concerned department of the defendant Corporation nor is it made clear as to what is meant by expression ?the Department immediately contacted the Law Officer? appearing in paragraph 3 of the application. In view of these vague allegations and the lack of any material particulars, the explanation sought to be given by the defendant is not tenable. I am unable to come to the conclusion that there was sufficient cause for the delay. Therefore, the application cannot be allowed and the same is accordingly dismissed. In view of the fact that the delay in filing the application under Order 9 Rule 13 is not condoned, the question of considering the said IA under Order 9 Rule 13 does not arise and the same is also dismissed.
