Dr. Munjula Krippendorf Pathak vs Vijay Dixit And Ors.
2007 Latest Caselaw 2299 Del

JUDGMENT

T.S. Thakur, J.

1. The procedure for trial of suits despite the amendments to the CPC and the ever increasing docket rush can sometimes be frustrating for the litigants. It is often said that a civil case is instituted by one generation but concluded by another. That may not be always true but what is a matter of common knowledge is that considerable patience, time and money is needed for taking a civil action to its logical conclusion. The difficulties of the litigant are bound to get compounded if he or she were to fight his or her case by remote control while settled in another country, far away from the place where the case is being tried. To that if one adds the problems of old age and ailments, the task of taking the matters to fruition is rendered so much more daunting. Dismissal for non-prosecution of a suit on account of the failure of the counsel to appear while the client is living thousands of miles away in another country, is in that backdrop not an unusual event. The courts, therefore, need to keep the ground realities in view while dealing with applications for restoration and condensation of delay. That is, however, not what has happened in the instant case. The appellant, who was the plaintiff in a suit for release of property of considerable value situated in the defense Colony of New Delhi suffered an order of dismissal for non-prosecution but failed to have the said order recalled before the learned Single Judge who took the view that her conduct did not warrant an order of restoration. The present appeal seeks reversal of that order and restoration of the suit for trial and disposal in accordance with law.

2. The plaintiff-appellant entered into a collobaration arrangement with the defendant Sh. Vijay Dixit in relation to the development of House No. B-56, defense Colony, New Delhi standing over a plot of land measuring 325 Sq. yards. We are not, for the present, concerned with the terms and conditions subject to which the development of the property had to be undertaken nor are we concerned with the question whether and if so by whom was the said arrangement violated. Suffice it to say that after the pleadings in the suit which was filed in the year 1996 were completed, the same was dismissed for non-prosecution by a learned Single Judge of this Court vide an order dated 20th May, 1999. An application for restoration of the suit was filed but only on 22nd February, 2005 in which the plaintiff-appellant set out the reasons for non-appearance on the date of dismissal of the suit and the delay in the filing of the application. The plaintiffs case both for condensation and restoration of the suit in brief was that she is a German Citizen ordinarily residing in Germany and carrying on locum consultancy in the United Kingdom. According to her version she had engaged a counsel in Delhi upon whom she heavily relied for the conduct of her suit. The plaintiff/appellant's further case was that she was incapacitated due to serious ailment around the time the suit came to be dismissed on 20th May, 1999. The illness was, according to the appellant, on account of a painful protrusion of the intervertebral disc of the cervical 4 &5 vertbrae, evidenced by the CAT scan which required treatment at the neurosurgical unit of Tubingen University. It was further alleged by the plaintiff that due to her illness she was not in a position to keep a constant vigil on the status of the case in this Court although she expected, not without reason, that her counsel would take keen professional interest in the suit and keep her informed of the progress, if any made in the same. Contrary to her expectations and to her bad luck, the counsel did not inform the appellant that the suit had been posted for hearing on 20th May, 1999 with the result that the plaintiff assumed that the counsel would inform her should anything be required to be done on her part in the same. The absence of any intimation from the counsel also made her believe that the suit was pending for hearing and nothing further perhaps required to be done by her.

3. The plaintiff-appellant's further case was that she was unable to visit India for about five years after the dismissal order was passed on 20th May, 1999 on account of her multiple health problems. She did come to India for just about four days in April, 2004 on account of a demise in her family and to attend the funeral rights of her aunt but due to her limited stay, she was unable to locate the counsel to verify about the status of her suit. In January, 2005 when the plaintiff again visited India she made sustained inquiries regarding her suit and was shocked to learn that the same had been dismissed in default by an order of the learned Single Judge dated 20th May, 1999. She immediately moved an application seeking condensation of delay and for restoration of the suit which was dismissed by the learned Single Judge vide the order impugned in this appeal.

4. From a reading of the order, it is evident that the learned Single Judge has declined restoration of the suit not because he has disbelieved the version given by the plaintiff/appellant but because the appellant had failed to arrange payment of a sum of Rs. 25 lacs in terms of the previous orders passed in the suit for delivery of possession of the ground floor of the property.

5. Appearing for the appellant Mr. Nagendra Rai, learned senior Counsel strenuously argued that the learned Single Judge has totally misdirected himself inasmuch as the question to be answered in the application was whether the appellant had made out a case for condensation of delay and whether she had a sufficient cause for non-appearance on the date the suit was dismissed for non-prosecution. None of these aspects had been, according to the learned counsel, examined by the learned Single Judge, who had digressed from the essence of the matter and justified the dismissal of the application by reference to the appellant's failure to pay Rs. 25 lacs for delivery of possession of the ground floor. He submitted that the averments made in the application and the admitted facts clearly made out a case for restoration of the suit. Relying upon the decision of the Supreme Court in G.P. Srivastava v. R.K. Raizada and Ors. , Mr. Rai contended that the provisions of Order 9 Rule 13 confer wide discretion upon the Court in deciding whether a sufficient case had been made out and that the provision had to be liberally construed avoiding a narrow or technical approach in the matter. Reliance was also placed by Mr. Rai upon the decision of the Supreme Court in Mahendra Rathore v. Omkar Singh and Ors. AIR 2000 (2) SC 505 in support of his submission that the Court is supposed to adopt a justice oriented approach in cases of restoration especially when the factual matrix is not in serious dispute.

6. On behalf of the respondents, it was on the other hand argued by Mr. Gupta that the application for condensation was highly belated and had been rightly dismissed by the learned Single Judge. He argued that just because the appellant had engaged a counsel for conduct of the suit did not absolve her of the obligation to remain diligent to effectively pursue the matter at every stage. He urged that the learned Single Judge had rightly mentioned that the dismissal order was made on account of the failure of the appellant to deposit the offered sum of Rs. 25 lacs for delivery of possession of the ground floor of the premises. There was, according to the learned counsel, no real reason for this Court to take a different view.

7. We have given our anxious consideration to the submissions made at the bar and perused the record. The material facts are not in serious dispute. It is not in dispute that the plaintiff is a German citizen of Indian origin and is permanently residing in Germany. The fact that the plaintiff/appellant had engaged the services of Sh. Anoop Bagai to conduct the suit on his behalf is also not in dispute. So also we have no reason to disbelieve the averment made on the affidavit filed by the appellant that she was hospitalized and undergoing treatment during the period the suit came up for hearing to be eventually dismissed for non-prosecution. The fact that the plaintiff has not visited the country for nearly five years after the dismissal order till April, 2004 when she came in connection with a demise in the family is also not in dispute. The only question that needs to be determined in the above backdrop is whether there was a sufficient cause for the non-appearance of the appellant on the date the case came up for hearing and was dismissed in default.

8. As to what would constitute a sufficient cause within the meaning of Order 9 Rule 13 has been the subject matter of a long line of judicial pronouncements. In The State of West Bengal v. the Administrator, Howrah Municipality and Ors. their lordships declared that the expression 'sufficient cause' appearing in Section 5 of the Limitation Act should be given a liberal construction so as to advance the cause of substantial justice. Similarly in Rafiq and Anr. v. Munshilal and Anr. , the Court held that under the adverserial legal system that we have, the parties generally appear through their counsel to defend their cases. The Court was, in that case, interpreting the expression 'sufficient cause' in the context of the default of the advocate engaged by the party and declared that if the party had done everything that needed to be done in the matter, a default in appearance on the date the matter was taken up for hearing should not be a ground for refusing restoration. The Court observed:

What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect or the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order.

9. Similarly in Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. , the Court reiterated that a liberal approach had to be adopted in considering the expression 'sufficient cause' to enable the Court to apply the law in a meaningful manner which subserves the needs of justice.

10. To the same effect is the decision of the Supreme Court in G.P. Srivastava v. R.K. Raizada and Ors. relied upon by Mr. Rai where the Court has declared that sufficient cause for non-appearance has reference to the date on which the suit was dismissed. Restoration, observed the Court, could not be denied on the ground of any previous negligence that have been overlooked or condoned. The following observations made by the Court are in this regard instructive:

Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as an elastic expression for which no hard and fast guidelines can be prescribed. The courts have a wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. The "sufficient cause" for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier.

11. That a justice-oriented approach has to be adopted by the Courts while dealing with applications for seeking restoration of cases dismissed in default is evident even from the decision of the Supreme Court in Mahendra Rathore v. Omkar Singh and Ors. AIR 2000 (2) SC 505.

12. The following legal propositions may, therefore, be taken to be well-settled viz;

i) That the Court has to adopt a liberal approach in interpreting the expression 'sufficient cause' whether the same is for the purpose of extension of time in making the application or for explaining the non-appearance of the litigant on the date the suit was dismissed for non-prosecution.

ii) That sufficient cause has to be seen by reference to the date on which the suit was dismissed for non-prosecution or the defendant proceeded ex parte and not by reference to the earlier defaults committed by him which the Court may have overlooked or condoned.

13. Applying the above principles to the case at hand, we are of the view that the order passed by the learned Single Judge is much too harsh to be legally sustained. We say so firstly because the learned Single Judge has not addressed himself to the question of existence or otherwise of sufficient cause for non-appearance of the appellant on the date of the dismissal of the suit and for condensation of delay in making the restoration application. The Court appears to have been swayed by the fact that there was a default in arranging the money which was not, in our view, conclusive of the matter. The amount of Rs. 25 lacs offered for deposit on behalf of the appellant, it is noteworthy, was without prejudice to the rights of the defendant in the suit. Secondly, because the facts and circumstances to which we have referred in the foregoing paragraphs, in our opinion, constitute a sufficient case not only for condensation of delay in the making of the application but also for recall of the order of dismissal passed by the learned Single Judge. Keeping in view the serious nature of the controversy involved in the suit and the harsh consequence that would flow from the refusal of the Court to restore the suit, recall of the dismissal order and restoration of the suit for disposal in accordance with law alone can, in our opinion, serve the cause of justice in the peculiar facts and circumstances of the case.

14. In the result, we allow this appeal, set aside the impugned order passed by the learned Single Judge, condone the delay in the making of the restoration application and set aside order dated 20th May, 1999 dismissing the suit for non-prosecution. Consequently, Suit No. 898/1996 shall stand restored to its original number for trial and disposal in accordance with law. The restoration shall, however, be subject to payment of Rs. 10,000/- as costs to be deposited by the appellant within six weeks from today. Fifty percent of the said amount shall be paid to the respondent while the remaining fifty per cent shall be deposited in the Delhi High Court Advocates' Welfare Fund. Parties to appear before the learned Single Judge for further directions on 10th December, 2007.

15. No Costs.