Shri Ajay Agarwal vs Shri Vinod Mehta And Ors.
2007 Latest Caselaw 931 Del

JUDGMENT

Vipin Sanghi, J.

1. By this order I propose to dispose of the aforesaid two applications. First is filed by defendant No. 3 under Order 9 Rule 7 CPC for setting aside the ex-parte decree/ judgment dated 11.11.2002 whereas I.A. No. 3811/2003, has been filed seeking condensation of delay in moving the first application.

2. After being served with the summons in the suit, the defendants entered appearance on 5.11.1993 and filed written statement on 24.5.1994. Issues in the suit were framed on 14.10.1996. On the same day, the court fixed dates for trial as 29th, 30th, 31st August and 1st September 1999. The matter was directed to be listed before the Joint Registrar on 14th February 1997 for scrutiny. Parties were given time to file additional documents, if any, within six weeks. Thereafter, proceedings were taken before Joint Registrar on 14th February 1997, 6.1.1998, 3.11.1998, 29.4.1999 and 2.7.1999. On none of these dates, defendants were present. Matter was listed before court on 30th August 1999, which was the second date fixed for the holding of the trial in the suit. On this date as well, there was no appearance on behalf of the defendant. Matter was again called out on 31st August 1999. None appeared for the defendants. The court then proceeded ex-parte against defendants and the plaintiff was granted time to lead its ex-parte evidence by way of affidavit of evidence within four weeks. It appears that the plaintiff also repeatedly took time to file his ex-parte evidence on affidavits. On 5th April 2000, the suit of the plaintiff was dismissed in default by observing that the plaintiff had been granted repeated opportunities for filing ex-parte affidavit by way of evidence and the lawyers were abstaining from work. The plaintiff then filed I.A. No. 4014/2000 for restoration of the suit under Order 9 Rule 4 CPC. This application was allowed on 9th May 2000. However, no notice of the fact of restoration of the suit was issued to the defendants. The court granted further time to plaintiff to lead ex-parte evidence by way of affidavit subject to payment of costs in the Prime Minister's Relief Fund. Eventually, ex-parte evidence by way of affidavit was filed by the plaintiff and the suit was heard and judgment reserved on 16th August 2002, which came to be pronounced on 11th November 2002 decreeing the suit of the plaintiff for a sum of Rs. 10,05,500/- with costs and interest @ 12% per annum from the date of the judgment and realization. No decree was passed against defendant No. 4.

3. Defendant No. 3 thereafter filed the aforesaid two applications apart from I.A. No. 3814/2003 seeking stay of the execution. On 1st April 2003, notice was issued on the applications and accepted by counsel for the plaintiff. A conditional stay was granted in respect of the judgment dated 11th November 2002.

4. In the aforesaid applications, the averments are identical. Defendant No. 3 states that the dates of trial had been intimated by the counsel with an assurance that they would be doing the needful in the matter. It is further stated that the defendants had inquired from the office of their counsel in the end of August and beginning of September 1999 and were informed that no evidence has been lead in the matter and that the same has been listed for 23rd September 1999 for filing the affidavit. It is stated that the office of the counsel did not inform the applicant/ defendant that they have been proceeded ex-parte on 23rd September 1999, which fact, according to them they became aware of by inspection of the file after coming to know of the passing of ex-parte decree against them.

5. It is stated that they made further inquiries and that they were informed that there has been no progress in the matter and ultimately they were informed by the office of their counsel that the matter was dismissed in default on 5th April 2000 by this Court. It is stated that they were advised by their counsel that in case an application is moved for restoration of suit or that if the suit is restored, they would receive a notice from the court. It is further stated that only upon receipt of the notice for restoration of the suit or the date of hearing from the court, they were advised to get in touch to the counsel for doing the needful in the matter. The defendants claimed that they remained under the bona fide belief that the suit which had been dismissed in default has not been restored as they did not receive any notice or summon from the court either of the application for restoration or of the fixing the date of hearing upon restoration of the suit.

6. The defendants explained that they became aware of passing of ex-parte judgment from a communication received from one CMYK Printech (P) Ltd. on 3rd March 2003, informing them of the passing of the ex-parte judgment in the suit. A copy of that communication dated 3rd March 2003 issued by the Managing Director and Editor Mr. Chandan Mitra has been placed on record.

7. It is contended by Counsel for the Defendant No. 3 that upon restoration of the suit by this Court on 9th May 2000, the defendants ought to have been served with the notice of restoration. In support of his submissions, Counsel for the defendant/applicant placed reliance on , Shishupal v. Manak Chand. In this case as well, the defendant was proceeded ex-parte before the case was dismissed in default. The Rajasthan High Court held that upon restoration of the suit, the defendants ought to have been put to notice. This requirement is implicity in of Order 9 Rule 4 CPC, since the said rule requires the court to fix a date for hearing of the suit.

8. I agree with this view taken by the Rajasthan High Court. Even after a defendant is proceeded ex-parte, it is open to the defendant to join the proceedings in the suit at a later stage. The defendant may be aware of the dismissal of the suit in default, and may thereafter choose not to even watch the proceedings or keep a track of the same as no obligation of the nature can be cast upon him. Therefore, he would be left totally uninformed of any further proceedings, in case, after the restoration of the suit, (which itself is by an ex-parte order), he has not even been put to notice of the fact that the suit has been restored by the court. In my view, therefore, defendants ought to have been put to notice upon restoration of the suit and that not having been done, the ex-parte judgment and decree ought to be set aside.

9. The defendants have justified the delay in filing the application by relying upon the communication received from CMYK Printech (P) Ltd. which is even prior to the plaintiff taking any steps for execution of the ex-parte decree. I have no reason to disbelieve the said communication as well as the reason furnished by the defendant for not moving the application under Order 9 Rule 13 CPC at an earlier stage.

10. However, I find that the defendants have not given any reasonable justification for not having participated in proceedings from the date they were proceeded ex-parte till the date of dismissal of the suit in default. The defendants themselves state that they were in communication with their counsel from time to time. However, it is not stated as to how they were communicating with the counsel and if any written communication was received. They have not placed on record any correspondence exchanged with their counsel.

11. It is correct for the defendant to state that after the framing of issues, their non-appearance before the Joint Registrar is of no consequence, since dates were being fixed only for the purpose of scrutiny etc. The defendants ought to have participated in the proceedings whether before the court or before the Joint Registrar, since all such proceedings are necessary for the purpose of progress of the suit. The defendant also does not state as to what action, if any, it have taken against the earlier counsel to whom they attributed lack of communication of their having proceeded ex-parte. Apparently no notice has been issued to the earlier counsel even making any such allegations. It is very easy for a party to engage another counsel at a later stage and to seek to justify its own acts and omissions by making allegations against the previous counsel, who has no opportunity to meet the same. The opposite party is also not privy to any such communication and is not that may in a position to challenge the same.

12. Counsel for the Defendant relies on Rafiq and Anr. v. Munshi Lal and Anr. wherein the Hon'ble Supreme Court held that a party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to High Court to inquire as to what is happening in the High Court with regard to his appeal, nor he has to act as a watch dog of his advocate to see that he appears when the matter is listed in court. It is submitted by the defendant that it having entrusted the matter to the counsel who was looking after the case, it was not necessary for them to have taken any further steps.

13. In my view the ratio of the aforesaid decision does not apply to the present case, since it cannot be said that the defendants were not obliged to take any further steps after the framing of issues by the court on 14th October 1996. The matter had been set down for trial on 29th, 30th, 31st August and 1st September 1999 and in the interregnum it was directed to be listed on 14.2.1997 for scrutiny. Consequently, the parties ought to have filed their list of witnesses before the scrutiny could take place on 14.2.1997. Since no list of witnesses were filed, no steps for summoning of witness were taken. The filing of list of witnesses was not a step which the defendants counsel, in any event, could have taken on his own without the active participation of the defendants. It is not the defendant's case that they had been giving instructions to their counsel in this regard and that the counsel had failed to act from time to time. Moreover, unlike the situation contemplated by the Hon'ble Supreme Court that the litigant may be a villager and may belong to a rural area, the defendant No. 3 in the present case is an established company in Delhi in the field of publication of news papers and therefore had the ware with all to keep a track of the case.

14. Counsel for the plaintiff on the other hand, has placed reliance on the following decisions of this Court, wherein it has repeatedly been held that a litigant cannot entrust the entire responsibility of the litigation upon his counsel and fail to discharge his own obligation in the conduct of the case:

1. 2003 V AD (Delhi) 299 Badri Bhagat Jhandewalan Temple v. DDA.

2. 1996 V AD (Delhi) 782 Hyderabad Industries v. Ashok Kumar.

3. 1994 II AD (Delhi) 489 Daya Ind. v. Sardar Jaswant Singh.

4. 1993 IV AD (Delhi) 102 Shri Akhlesh Chander Mathur v. Canara Bank.

15. In view of the aforesaid, I partially allow the applications with costs of Rs. 10,000/-. The ex-parte judgment and decree dated 11th November 2002 is set aside and the suit is restored. The defendant No. 3 would be entitled to participate in the suit from the stage it was dismissed in default.

16. The counsel for the plaintiff states that the two affidavits by way of evidence filed on record earlier may be read as the affidavits of two witnesses, of which the plaintiff seeks to rely.

17. The plaintiff should furnish copies of the affidavits to Counsel for the Defendant No. 3 within a week.

18. List the matter before Joint Registrar for recording of cross-examination of plaintiff's witnesses on 13th August 2007.

 April 07, 2007                                                               Vipin Sanghi, J
P.K. Babbar
 

Subsequently, Counsel for the plaintiff has mentioned the matter in the absence of the defendant's counsel and pointed out that now the suit has been revived, the same be transferred to the District Court since the jurisdictional value of the suit is below Rs.20 lakhs. He undertakes to inform the aforesaid position to learned Counsel for the Defendant No. 3. The Joint Registrar may pass appropriate orders on the next date in this regard. The cross-examination of plaintiff's witnesses need not proceed on the next date.