Jai Gopal Goyal And Anr. vs Bishen Dayal Goyal
2007 Latest Caselaw 880 Del

JUDGMENT

Sanjay Kishan Kaul, J.

IA No. 6993/2004 (Under Order 9 Rule 13 r/w Section 151 of CPC)

1. The plaintiffs filed a suit for specific performance to direct the defendant to complete the agreement dated 08.02.1994 and execute documents of title in favor of the plaintiff in respect of the property bearing number C-254, defense Colony, Delhi.

2. The defendant appeared on 22.05.1995 and also filed a written statement. Issues in the suit were framed on 18.02.1998 and the matter was fixed for recording of evidence of parties on 17, 18 May 2000. On 19.05.2000, two witnesses of the plaintiff were present but an adjournment was sought on behalf of the defendant on the ground that no instructions were being received. The case was listed for trial on 7, 8 May 2001 subject to payment of costs of Rs. 2000/- and for scrutiny on 04.09.2000. On 04.09.2000 none was present for the defendant and it was noticed that the costs had also not been paid. Again on 07.05.2001, none appeared for the defendant and the matter was listed on 08.05.2001. On 8 th May also, there was no representation on behalf of the defendant and the defendant was proceeded ex parte and the plaintiffs were permitted to lead ex parte evidence.

3. Ex parte evidence was led by the plaintiffs and on 13.08.2004, a decree was passed against the defendant and the defendant was directed to complete and specifically perform the agreement dated 18.02.1994 and execute title documents in respect of the suit property.

4. It is thereafter that the present application was filed on 11.10.2004 under Order IX Rule 13 for setting aside of the ex parte decree.

5. In the application, it has been stated that the defendant was represented by counsel till 2001 and the defendant used to enquire about the matter from the counsel on telephone as the defendant was residing in Calcutta. It is stated that the counsel told the defendant that there is a long list of matters and the present suit will be taken up by the Hon'ble court as per its turn. The counsel telephonically told the defendant that he would inform him as the matter is fixed for hearing further.

6. The defendant claims that he came to know about the passing of the ex parte decree only on 14.09.2004 through one of his relatives.? On attempting to contact the earlier counsel, there was no response and thus the present counsel was engaged on 17.09.2004 On inspection of the file, it was found that issues were framed on 18.02.1998 when the defendant was being represented by Mr. Ashish Dholakia. Mr. Dholakia last appeared on 19.05.2000 and sought discharge. It is alleged that these proceedings were not informed to the defendant and the counsel neither moved an application for discharge nor did he appear.

7. The defendant thus, seeks the setting aside of the ex parte decree on the ground of the fault of the earlier counsel and seeks to contend that the defendant should not be made to suffer due to the fault of the counsel. ?In this behalf, learned Counsel for the defendant placed reliance on the judgment of a division bench of this Court in Lalit Mohan Puri v. Pure Drinks (New Delhi) Ltd. , wherein, the case was transferred from one bench to another which was not noticed by the counsel's clerk. The non appearance of the counsel was due to the clerks failure. It was observed that there was no default of the applicant in non-appearance and they should not be made to suffer for the negligence of the office of the counsel. The ex parte decree was set aside. In Bank of India v. Mehta Brothers and Ors. AIR 1991 Delhi 194, there was default in appearance of the counsel on a number of dates. The defendant had entrusted the case to a firm of solicitors and was under the belief that the case was being conducted by its lawyers. Steps were taken the moment it was informed of the ex parte decree. The court found sufficient cause for setting aside of the ex parte decree. Reference was also made to the judgment of the Apex Court in Rafiq and Anr. v. Munshilal and Anr. wherein it was observed that it is not proper the party having done everything in his power and expected of him should suffer because of the default of his advocate. An innocent litigant should not suffer injustice because of the negligence of his advocate.

8. The application also refers to other proceedings between the parties including a suit no 57/1995 filed by the defendant against the plaintiffs for specific performance and recovery of possession of the suit property on the ground of an agreement dated 5.7.1991. 'It is alleged that under the said agreement, the plaintiffs were holding the title deeds of the property till such time as the defendant could repay a loan stated to be taken from the plaintiffs.' In this behalf, the plaintiffs have pointed out that the said suit was being heard along with the present suit and Mr. Ashish Dholakia was appearing in the said suit also and on 19.05.2000 stated that he was receiving no instructions. The suit was dismissed for non prosecution on 08.05.2001 and no application for restoration has been filed till date.

9. Learned Counsel for the plaintiffs points out that the criminal complaint filed by the defendant against the plaintiffs alleging that the receipt dated 18.02.1994 is forged was dismissed in default on 20.09.1997. In this behalf, learned Counsel for the plaintiffs referred to the order dated 20.09.1997, a perusal of which shows that the case was called several times on the said date but none was appearing. On the previous two dates also none was appearing. A specific order was made on the previous date that the complaint would be dismissed in case the complainant fails to appear. The complaint was thus dismissed in default.

10. It is further pointed out by learned Counsel for the plaintiffs that the plaintiffs had lodged an FIR No. 789/1999 before the police station, defense Colony, Delhi under Section 341 of the Indian Penal Code. A challan is stated to have been filed before the court of the CMM Delhi who issued non bailable warrants against the defendant. The defendant did not appear in the proceedings. It is pointed out that vide an order dated 28.01.2003, the defendant had been declared a 'proclaimed offender'.

11. Learned Counsel for the plaintiffs also stated that in the proceedings in CWP No. 5635/1998 filed by the plaintiff with regard to the electricity connection installed in the suit property, the defendant (respondent No. 2 therein) had appeared before the court on 20.07.2001 and there after the defendant did not appear in the said proceedings.

12. Learned Counsel for the plaintiffs referred to the judgment of a learned single judge (as he then was) of this Court in Indian Sewing Machines Co. Pvt Ltd. v. Sansar Machine Ltd. and Anr. , where the plea of negligent absence by the counsel was taken by the applicant seeking to set aside the ex parte decree. The applicant failed to prove his diligence in pursuing the case or his counsel and gave no explanation about steps taken to prepare or file the written statement. It was held that no sufficient cause was made out for setting aside the ex parte decree. The court observed that there is no dispute on the principle of law that a litigant should not be made to suffer for the fault of his counsel. However, the question to be examined is whether the responsibility of the defendants ends merely by engaging a counsel and should not a litigant show diligence on his part. It can be understood if a litigant has been diligent enough and acting bona fide then the fault of the counsel may not be labelled as a penalty against the litigant.? In National Small Industries Corporation Ltd. v. Thermosetting Industrial Projects 2001 II AD (Delhi) 857 it was observed that engaging a lawyer does not mean that the party is absolved of his/her duty to diligently pursue the case. Recently a tendency has developed amongst litigants to blame his/her lawyers for adverse orders passed without realizing that a lawyer cannot conduct the case without proper instructions from the party. The lawyer is not expected to write to his client after every date of hearing about the developments in the case unless there is a specific contract about the same.

13. On consideration of the submissions advanced by learned Counsel for the parties and the case law cited at the Bar, I am of the considered view that there is no dispute about the legal principle that an innocent litigant must not be allowed to suffer due to the fault of his counsel. Simultaneously, it is also a settled legal principle that a litigant must show due diligence in pursuing or defending the case and mere entrustment of a case to the counsel does not absolve the litigant of all responsibilities. The observations made in Indian Sewing Machines Co.Pvt. Ltd's Case (supra) thus lucidly set forth this aspect.

14. In National Small Industries Corporation Ltd.'s case (supra), it has been observed that a recent trend has developed that litigants who fail to take steps or defend a matter attempt to blame their counsels for the adverse orders.

15. I am of the considered view that this is one more case of that category. The facts and order sheets referred to above in the present case show the negligent manner in which the defendant has been proceeding not only in the present suit but also in other legal proceedings between the parties. No doubt as a legal principle, a party has to explain the absence on a particular date in a particular matter, but the court can certainly take cognizance of a continued trend to evade legal proceedings. In the criminal proceedings filed by the defendant, he failed to appear resulting in dismissal of the same. In the criminal proceedings filed against the defendant, the defendant has been declared a proclaimed offender. These criminal proceedings arise out of the same dispute. Not only that the suit filed by the defendant for possession in respect of the present dispute was also simultaneously dismissed when the ex parte proceedings were initiated in the present suit and no steps have been taken for the last about six years for restoration of the suit. It is only when the defendant faced the consequences of the decree passed in the present suit that the present application has been filed.

16. The various stages in the present suit show that the case was the at the stage of evidence. It was the bounden duty of the defendant to have made necessary enquiries and the defendant cannot sleep over the matter for years. The excuse of telephonic conversations with the counsel is a convenient one and it would normally be expected that there would be some written communication between the party and the counsel. No affidavit of the earlier counsel has been filed explaining the position nor has any complaint been lodged against the earlier counsel for the negligence of duties in not defending the defendant, if the allegation of the defendant is assumed to be correct. All these facts show that the defendant was either negligent or possibly was deliberately evading the process of this Court to only come now at the belated stage to evade the consequences of the decree passed against the defendant.

17. The present application is without any merit or substance and is only an endeavor on the part of the defendant to evade the rigours of the decree passed against him.

18. The application is dismissed with costs of Rs. 5,000/-.