Mrs. Mohini Mehra vs Malibu Estate (Pvt.) Ltd.
2006 Latest Caselaw 566 Del

JUDGMENT

S.N. Aggarwal, J.

1. An usual and a stock plea of wrong noting of the date in the case diary and on the file cover set up as a defense to show sufficient cause for non- appearance on a date of hearing which led to the passing of ex parte decree is under judicial scanning in this appeal before us.

2. The appellant has got this appeal argued through her husband whom she appointed as her Attorney for the purpose. The appellant's Attorney has demolished the stand of the respondent bit by bit and has established that the respondent had set up a frivolous plea of wrong noting of date in the case diary as a ground for setting aside the ex parte decree against it. In order to appreciate the contentions of the appellant, it would be necessary for us to detail out the brief background of the case which led to the filing of this appeal. The factual matrix of the case is as follows:-

3. The appellant on 7.2.1996 had entered into an agreement with the respondent for purchasing an apartment bearing No. 6/G-02 (Tower No. 6 and Flat No. 2 on G.F.) in Malibu Town, Gurgaon, Haryana. Under the terms of the Agreement, the respondent was required to hand over possession of the flat in question to the appellant within 3 years from the date of booking, i.e., on or before 7.8.1999. Though the appellant had paid the entire sale consideration of the flat amounting to Rs.18,70,740/-, but the respondent failed to honour its commitment. When the appellant pressed for possession of the flat, the respondent offered an alternative flat in Tower No. 6 but the proposal for alternative flat given by the respondent was not accepted by the appellant. The appellant ultimately opted for refund of the money paid by him to the respondent towards sale consideration and vide demand notice dated 12.3.2002 called upon the respondent to return the entire sale consideration amounting to Rs.18,70,740/- along with interest thereon. In reply to the legal notice, the respondent did not dispute the execution of the Agreement and the terms and conditions contained therein. Since the respondent failed to return the amount received by it from the appellant, the appellant filed a suit for recovery of Rs.35,54,406/- against the respondent on 21.10.2002 and this amount was inclusive of interest till that date.

4. Summons of the suit were served on the respondent on 16.11.2002 but the respondent did not file written statement within the statutory period of 90 days from the date of service. Written statement was filed on 25.4.2003 along with an application being IA No. 9752/2003 seeking condensation of delay in filing the written statement. This application for condensation of delay was listed for hearing before the learned Single Judge on 24.5.2004 but on that date the Hon'ble Judge was on leave and the Court Master adjourned the case for 12.8.2004 On 12.8.2004 since none appeared on behalf of the respondent, the learned Single Judge dismissed the application of the respondent for condensation of delay in filing of written statement and kept the matter for passing of judgment under Order VIII Rule 10 CPC for 16.8.2004 and on that date passed a decree for the suit amount along with interest against the respondent.

5. The respondent thereafter filed an application being IA No. 5560/2004 under Order IX Rule 13 read with Section 151 CPC on 27.8.2004 and prayed for setting aside ex parte decree against it. The respondent took a stand in its application for setting aside of ex parte decree that when its counsel Mr. R.C. Beri, clerk of the respondent's counsel, Mr. Bhaskar Sharma and the respondent's Ex-General Manager (Sales), Mr. Narender Prakash, went to the Court to attend the case on 24.5.2004, they found the Cause List hanging outside the Court room as the Judge was on leave and on that date they wrongly noted the next date as 20.8.2004 instead of 12.8.2004 The plea of the respondent was that non- appearance before the Court on its behalf on 12.8.2004 was not deliberate as it was because of wrong noting of date by it and its counsel.

6. The application for setting aside the ex parte decree was opposed by the appellant. On the pleadings of the parties, the learned Single Judge framed the following issues:-

1. Whether the application under Order IX Rule 13 CPC is maintainable in view of the objections raised by the Decree Holder in this regard.

2. Whether there is sufficient cause to set aside the ex parte decree.

7. The respondent filed its evidence by affidavits. Three affidavits were filed in evidence in chief and they are of Mr. R.C. Beri, Advocate, AW-1; Mr. Bhaskar Sharma, clerk of respondent's counsel, AW-2 and Mr. Narender Prakash, Ex-General Manager (Sales) , AW-3. All these three witnesses of the respondent who file their affidavits were cross-examined by the appellant's Attorney.

8. We have heard the appellant's Attorney as well as the respondent's counsel and have also gone through the entire record.

9. The appellant's Attorney had argued that the learned Single Judge while deciding application under Order IX Rule 13 CPC went into tangent and reviewed the order of his predecessor Hon'ble Mr. Justice H.R. Malhotra as if he was sitting in appeal over his orders. It was further contended that what the learned Single Judge was required to consider was as to whether the summons of the suit had been served on the respondent or not and further whether there existed sufficient cause for non-appearance of the respondent on 12.8.2004 which led to passing of ex parte decree against the respondent.

10. The stand of the appellant is that the plea of wrong noting of date set up in defense to show sufficient cause is falsified from the cross- examination of the witnesses of the respondent themselves. He has taken us through the cross-examination of all the three witnesses examined by the respondent and by referring to the same, he has pointed out that Mr. Bhaskar Sharma, AW-2 and Mr. Narender Prakash, AW-3, have stated in their cross- examination that they both were alone at the time they had wrongly noted the date in the case diary on 24.5.2004 This deposition of the above witnesses is at variance to what they have stated in their affidavits filed in evidence in chief. For the time being, we may ignore the contradiction and inconsistencies in the deposition of the respondent's witnesses on the above aspect as it could be possible that the respondent, its counsel and the clerk of the counsel might had gone to the Court on 24.5.2004 separately and not together. However, the matter does not rest here. The appellant's Attorney had also contended that the respondent is guilty of fabricating document to give a support to its false plea of wrong noting of date. In support of the said contention, he referred to page No. 71 of the paper book which is photocopy of the case diary of the respondent's counsel pertaining to 20.8.2004 He further referred to the cross-examination of Mr. R.C. Beri, Advocate, AW-1, with regard to the dates mentioned on the left and right side of the cases entered in the diary of 20.8.2004 On this aspect, AW-1, Mr. R.C. Beri had deposed as follows:-

I have seen the photocopy placed at page 10 in the case titled as Indian Bank v. Kaushalya Devi, the date given on the left side i.e. 3/5 is the previous date in the matter and the date i.e. 5/11 on the right side is the date for which the matter was adjourned on 20th August 2004.

11. We have looked at the case diary of respondent's counsel for 20.8.2004 in the light of above deposition of respondent's counsel in its cross- examination. We have noticed that against the present case entered in the diary of 20.8.2004, the next date mentioned on the right side of the case is 8.12.2004 It shall be significant to note that on 20.8.2004 the suit out of which this appeal has arisen was not pending before the learned Single Judge and there could not be any occasion for noting the date of 8.12.2004 on that date. This clearly shows fabrication of case diary and counsel for the respondent could not give any satisfactory explanation for the same when asked for. The Court will not come into aid of a litigant who does not approach the Court with clean hands. It is apparent that the respondent has concocted a false story of noting of wrong date in the case diary and on the file cover for reasons best known to it.

12. Furthermore, we may note that on 16.4.2005, counsel for the respondent had moved an application under Section 151 CPC with a prayer for summoning the Cause List dated 24.5.2004 from the Registry. This application for summoning the Cause List of 24.5.2004 was filed by the respondent after completion of cross-examination of its witnesses and this obviously deprived the appellant of a right to cross-examine on crucial aspect of the matter. It shall be significant to mention that the application filed on 16.4.2005 for summoning the Cause List of 24.5.2004 was supported with an affidavit filed by Mr. Bhaskar Sharma, clerk of the respondent's counsel who has deposed in paragraph 2 of its affidavit as follows:-

2. That the accompanying Application under Section 151 CPC has been drafted by our counsel under my instructions, read over to me and understood by me and the contents of the same are true and correct to my knowledge as derived from the records and may be treated as part and parcel of this affidavit and are not being repeated herein for the sake of brevity.

13. It is really surprising how the clerk of a counsel can instruct a litigant's counsel for moving an application before the Court and this shows as if the application was moved without instructions from the party. To us, it appears that the learned Single Judge has laid over-emphasis on the Cause List of 24.5.2004 ignoring the glaring infirmities in the stand taken by the respondent as a ground for setting aside of ex parte decree. In our view, the learned Single Judge ought not to have relied upon the document on which opportunity for cross-examination was not given to the other side. We are further of the view that the learned Single Judge while considering the application under Order IX Rule 13 CPC ought to have restricted consideration to find whether sufficient cause for non-appearance has been shown by the defaulting party or not as in this case the service of summons of the suit was not in dispute before him.

14. In view of the above, we have reached to a conclusion that the impugned order setting aside the ex parte decree cannot stand the test of judicial scrutiny. Hence, the impugned order is hereby set aside.

15. The appeal is allowed. No order as to costs.