Latika Industries And Ors. vs Mr. G.S. Arora
2006 Latest Caselaw 868 Del

ORDER

J.P. Singh, J.

1. This order will dispose of C.M. No. 7142/2005 dated 28.4.2005, under Order IX Rule 4 CPC, C.M. No. 7143/2005 dated 28.4.2005, under Section 5 of the Limitation Act and C.M. No. 7144/2005 also under Section 5 of the Limitation Act. I have heard Mr. P.L. Srivastava, learned Counsel for the applicants- petitioners and Mr. S.P. Batra, learned Counsel for respondent and have gone through the file.

2. In the main application it is submitted that Civil Revision No. 1004/1998 was dismissed in default and for non prosecution on 8.8.2003. It is stated that the learned Counsel for the petitioner-applicant had been suffering from lung infection and hypertension from August,2001 onwards and ?rendered irregular in appearance before the courts?. It is submitted that the petitioners came to know about dismissal of the civil revision only on 6.4.2005 when the learned Counsel inspected the trial court file of execution case No. 11-A/94 (old) and 67/2003 (new) and read the dismissal order passed by the High Court. It is further submitted that the petitioner was fully dependent on the learned Counsel. The absence was unintentional and therefore the civil revision should be restored.

3. Along with this application an application No. 7143 under Section 5 of the Limitation Act has also been moved, which contains the same averments as in C.M. No. 7142. In this application the delay is stated to be of 22 days. The other application No. 7144/2005 is also under Section 5 of the Limitation Act and the delay is stated to be of 598 days.

4. Learned Counsel for the respondent has pointed out that there is no plausible explanation for condensation of delay nor the applications are supported with learned Counsel's affidavit nor any medical evidence has been filed as to how and what prevented the learned Counsel or the judgment debtor himself from pursuing the matter for such a long period and has also drawn my attention to the order-sheets of this file.

5. The order sheet dated 6.8.1999 shows that the matter was fixed for disposal on 14.10.1999 and interim order of stay was ordered to be continued till 14.10.1999. No body appeared on behalf of the petitioners and consequently the petition was dismissed in default on 14.10.1999. Then C.M. No. 5666 under Order IX Rule 4 CPC read with Section 151 CPC was filed in the High Court on 15.12.1999 stating that the learned Counsel was in some personal difficulty and he had requested his colleague to appear in the matter and he was informed by the said learned Counsel that the matter was adjourned to 2.12.1999 on which date he did not find the matter in the cause list and on inspection of the file came to know that the petition was dismissed on 14.10.1999 though he had entered the date of the matter as 2.12.1999 believing in the words of his colleague advocate. The said application No. 5666 was also accompanied with the application under Section 5 of the Limitation Act for condensation of delay.

6. Prima facie this application was barred by time and the usual explanation about the wrong information by a colleague advocate was given. Notice was issued on this application to the respondent through counsel. In the order sheet of 16.7.2001 it is recorded that the learned Counsel for the petitioners was suffering from viral fever, adjournment was sought and the matter was fixed for arguments on 8.11.2001. It seems that none appeared for the petitioners and it is wrongly recorded that Mr. S.P. Batra (who is counsel for the respondent) was present for the petitioners. The matter was adjourned to 18.3.2002. None appeared for the petitioners on the said date though learned Counsel for the respondent was present. Nobody was appearing for the petitioners but apparently in the interest of justice the matter was adjourned twice and when it came up for hearing on 8.8.2003 again there was no appearance on behalf of the petitioners and after recording that there was no appearance on the earlier dates also the petition was dismissed in default and for non prosecution on 8.8.2003.

7. This evidently shows that first the matter was dismissed in default on 14.10.1999. Application No. 5666 and 5667/1999 which were for restoration of the main petition were also dismissed in default on 8.8.2003. After this the present three applications were moved viz., application No. 7142/2005 dated 28.4.2005 (i.e., after about 1 year and 8 months) and other two applications for condensation of delay of application No. 7142/2005, for restoration of the main petition and not C.M. Nos. 5666 and 5667/1999 (supra) and in this application (No. 7142/2005) the plea of prolonged illness of the counsel has been raised. Application No. 7143/2005 dated 28.4.2005 is under Section 5 of the Limitation Act for condensation of delay of 22 days and application No. 744/2005 is also under Section 5 of the Limitation Act for condensation of delay of 598 days in moving application No. 7142/2005, as already referred to above.

8. The above record and conduct of the petitioners show the haphazard and half hearted manner in which the applications after applications are being moved without even inspecting the file.

9. Without seeking restoration of C.M.Nos. 5666/1999 and 5667/1999, the petitioners have jumped the intervening default and have straightway sought restoration of the main petition in fact after a period of about 5 years and 6 months (2019 days because relevant dates are 14.10.1999 and 28.4.2005). At this stage, I may add that normally the courts are liberal and they make endeavor to decide the controversy on merits rather than throwing out an application on the ground of limitation. But in my view an attempt to misrepresent the matter to the court has been made and otherwise also the alleged delay of 598 days (though in fact the delay is of 2019 days, supra) is not supported by any plausible explanation or evidence and in the earlier application No. 5667/1999 also the blame had been put on another advocate. All this conduct of the petitioners is reprehensible and, in my view, the petitioners do not deserve any judicial discretion.

10. The entire matter can be summed up as under:

The suit for recovery of money was filed on 5.4.1990. It was decreed on 18.2.1991. The judgment debtor allegedly created a trust in 1994 to evade the execution of decree. In 1997 objections were filed by the wife of the judgment debtor. The same were dismissed by Additional District Judge, Delhi. On 5.5.1997 first Civil Revision Petition (469/1997) was filed by wife of judgment debtor which was dismissed by the High Court apparently with permission to file objections in the execution court. The second objections were filed on 12.8.1998, which were dismissed by the trial court. Thereafter second revision (No. 1004/1999) was filed in High Court which was dismissed in default on 14.10.1999. As mentioned above application No. 5666/1999 was filed for restoration of the main petition on 15.12.1999 along with 5667/1999 for condensation of delay. These applications were also dismissed in default on 8.8.2003. Thereafter the present three applications were filed for restoration of the main petition and not the earlier application Nos. 5666/1999 and 5667/1999. On 18.3.2005 again objections were filed before the execution court which too have been dismissed and now these applications again in the High Court after delay of 2019 days (supra) to give new life to the revision petition. The above mentioned facts and circumstances leave no doubt in my mind that the JDs and their LRs were and are leaving no stone unturned in delaying the execution of the decree and for preventing the decree holder from reaping the fruits of having won the suit in the year 1991. The JDs and their LRs have succeeded in prolonging the matter for about 15 years. For such type of people the Supreme Court of India in the judgment titled S.P. Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. and Ors. , opined as under:

The principle of ?finality of litigation? cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-gabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

11. Considering all the facts and circumstances of the case the applications bearing C.M. No. 7142/2005 dated 28.4.2005 under Order IX Rule 4 CPC, C.M. No. 7143/2005 dated 28.4.2005 under Section 5 of the Limitation Act and C.M. No. 7144/2005 also under Section 5 of the Limitation Act being malafide and vexatious are dismissed with Rs. 25,000/- (Rupees Twenty Five Thousand) as costs in favor of the respondent-DH and against the petitioners-JDs-LRs. The trial court is directed to expedite the execution of the decree.