Oriental Bank Of Commerc And ... vs Sh. Ajit Singh
2007 Latest Caselaw 94 Del

JUDGMENT

J.M. Malik, J.

1. Application under Order IX Rule 13 read with Section 151 C.P.C. was dismissed by learned Additional District Judge vide his order dated 04.06.2005. Aggrieved by this order, the present first appeal has been preferred. The genesis and sequence of this case is as follows. The plaintiff-respondent had filed a suit for ejectment of the appellants from the ground floor of premises No. IX/6094, Main Road, Gandhi Nagar, Delhi measuring about 1450 square feet and for recovery of damages for use and occupation of the suit property in the sum of Rs. 5,33,800/- for the period w.e.f. 17.01.2001 till filing of the said suit on 07.08.2002. The plaintiff/respondent had moved an application under Order 12 Rule 6 read with Section 151 C.P.C. The appellants had contested that application. The Trial Court vide its order dated 29.01.2003 passed decree for ejectment of the defendants/appellants from the suit premises and also held that a separate enquiry under Order XX Rule 12 C.P.C. was to be initiated to know the quantum of damages/mesne profits. Aggrieved by that order, the appellants had filed an appeal before this Court. The Division Bench of this Court vide its order dated 16.02.2003 gave time to appellants to hand over the vacant and peaceful possession of the disputed property on or before 30.09.2005 on the undertaking given by the appellants.

2. The learned Trial Court vide its judgment dated 07.01.2004 decreed the suit with interest @ 12% per annum pendente lite and future interest. The Court of learned Additional District Judge also directed that the respondent was entitled to future damages @ Rs. 20/- per square feet i.e. @ Rs. 28,600/- from the date of filing of the suit till the handing over of the peaceful possession of the suit premises. Judgment dated 17.01.2004 further goes to show that the appellants did not appear before the Court on 17.01.2004. The appellants were proceeded against ex parte and the above mentioned judgment was announced on the same day.

3. The appellants moved an application for setting aside the ex parte decree dated 17.01.2004 vide application dated 19.03.2004. It is averred that on 02.01.2004, the learned Additional District Judge was pleased to adjourn the matter firstly for 17.01.2004, however, the matter was finally adjourned for 12.02.2004. The learned Counsel for the appellants got the impression that the case was fixed for final hearing for 12.02.2004. He noted the date on the file as 12.02.2004. Learned Counsel for the appellants appeared in the Court on 12.02.2004 but it transpired that the Hon'ble Court was on leave. The cause list also did not mention the name of the case. On enquiry, it came to light that the case was taken up on 17.01.2004, the defendant was proceeded against ex parte and the matter was decreed by the Hon'ble Court on the same very day. Learned Counsel for the appellants inspected the file on 13.02.2004. Consequently, the above mentioned application was filed. The appellants pleaded that they have got a good prima facie case, the opposite party did not place the true facts before the Court, the respondent-plaintiff failed to prove that he is entitled to claim the above said rate of rent because the prevailing rate of rent is much lower, and the absence of the appellants was neither intentional nor willful nor to delay the ends of justice but it was an inadvertent mistake. Application under Section 5 of Limitation Act seeking condensation of delay was also filed. The respondent has contested the application.

The following two issues were framed:

(1) Whether the decree is liable to be set aside as alleged in the application under Order IX Rule 13 C.P.C.

(2) Relief.

4. I have heard the learned Counsel for the parties. Learned Counsel for the appellants vehemently argued that he has got a very good prima facie case. He explained that on the same day i.e. on 17.01.2004 in another Court presided over by Shri S.N. Dhingra, the then Additional District Judge, a similar case was decided. That case pertains to ground floor and first floor of property bearing No. IX/6087, Main Road, Gandhi Nagar, Delhi. In the said judgment, the suit was decreed and it was ordered that unpaid damages be recovered @ Rs. 10/- per square feet per month with a simple interest of unpaid damages @ 6% per annum.

5. The second submission made by him was that his own witness, Mr. S.C. Garg, PW1, has committed an egregious mistake during his cross-examination, when he made the following statement :

On 02.01.2004 I had appeared in the Court of Sh.Prem Kumar the Ld. ADJ, Delhi. It is correct that on the said date main suit was fixed for defense Evidence. On that date no witness on behalf of the Applicant was present. I do not remember if on 02.01.2004 a request for adjournment had been made on behalf of the Defendant or not. It is correct that on 02.01.2004 case had been adjourned by the Ld. Presiding Officer to 17.01.2004. Vol. Before 17.01.2004 Sh. Pandey Advocate of the Bank informed me that the case has been adjourned to 12.02.2004 for evidence. I do not remember the date when the said information had been given by the said Sh. Pandey, Advocate. I can neither deny nor affirm that the said case was never fixed for hearing on 12.02.2004. Vol. Date of hearing 12.02.2004 had been informed to me by the said Advocate.

6. Learned Counsel for the appellants also invited my attention towards order dated 02.01.2004 which is reproduced as follows :

Pr. Plaintiff with counsel

Counsel for Defendant.

Affidavit not filed. In fact the learned Counsel for Plaintiff has pointed out the attention of the Court to the Written Statement and reply of the Defendant where no specific plea as regards the actual market rate prevalent in the area has been made.

The plea of the Defendant in regard to the rate of damages seems to be evasive. Learned Counsel for Plaintiff seeks time to make submission, if any, in this regard. He may do so if the law permits. He may produce his evidence if any or on 17.01.2004.

Learned Counsel for the appellants vehemently argued that this ordersheet is ajar with the facts stated by his own witness because this order does not mention the presence of PW1.

7. For the following reasons, I do not find myself amenable to these arguments. At this stage, the Court is not to consider the merits of the case. The pivotal point before the Court is whether there was sufficient ground in moving the above said application or the absence of the appellant was intentional, willful or it was a ploy to buy time. It must be borne in mind that it is no part of the duty of Court to make a note of presence of each and every person present in the Court. The question of writing about the presence of S.C. Garg, PW1, could not have possibly arisen. Mr. S.C. Garg did not appear as a witness. On the contrary it was fixed for the evidence of the plaintiff.

8. Now, I turn to the evidence of appellants themselves. S.C. Garg, the appellant's own witness is helming their case. He did not seem wee bit hesitant to say that the case was adjourned to 17.01.2004. The admision of the case comes out from the horse's mouth itself for which I see there is no escape. The rest of the evidence pales into insignificance. One must approach the Court with clean hands. It is well said that the naked truth is always better than the best dressed lie. It stands proved that the absence of the appellants was intentional. The witness has stated that he was present and the date was given in his presence. Consequently, whether his presence was recorded by the Court or not, does not in any way go to whittle down the value of his testimony made on oath. It also goes beyond the pale of my comprehension as to how the appellants could disown their own witness. They did not cross-examine him.

9. Again, the application under Order IX Rule 13 C.P.C. was accompanied by an affidavit filed by Mr. Arvind Pandey. However, he did not enter into witness box for the reasons best known to him. He also did not file the case diary or case file in support of the above said averment of wrong noting down of date. The best evidence should have been produced, as was held in Gopal Krishanji v. Mohd. Haji .

10. The matter does not end here. According to the appellants, it had come to light that an ex parte decree was passed on 12.02.2004 and their counsel had inspected the file on 13.02.2004. It is difficult to fathom as to what had prevented the appellants to move this application within thirty days of acquisition of knowledge. It clearly goes to show gross negligence on the part of the appellants.

11. The appeal has no force and the same is, therefore, dismissed. No orders as to costs.

CM No. 12746/2005 in FAO No. 261/2005

In view of the dismissal of the appeal, no further orders are required to be passed in this application. The same is, therefore, dismissed.