Delhi High Court
Vijay Cables Industries & Another vs The National Small Scale ... on 23 January, 2009
Author: Reva Khetrapal
UNREPORTED
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.01.2009
+ C.M. Nos.11781-83 in FAO (OS) 516/2007
VIJAY CABLES INDUSTRIES & ANR. .........Appellants
- versus -
THE NATIONAL SMALL SCALE
INDUSTRIES CORPORATION LTD .......Respondent
Advocates who appeared in this case:
For the Appellants : Ms.Suman Kapoor, Advocate.
For the Respondent : None.
CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in Digest?
REVA KHETRAPAL, J
C.M. No. 11781/08 in FAO (OS) No. 516/07:
1. This is an application filed by the appellants under Section 114 read with
Section 151 of the Code of Civil Procedure for recalling of order dated 3rd March,
2008.
2. An appeal was preferred by the appellants against the order dated 6 th July,
FAO (OS) 516/2007 Page 1 of 3
2007 passed by the learned Single Judge dismissing the application filed by the
appellants praying for setting aside the ex parte decree. All the contentions which are
now raised in this application and argued before us have already been considered and
dealt with by a Division Bench of this Court of which one of us (Reva Khetrapal, J.)
was a member. The relevant portion of the order dealing with the contentions again
sought to be raised before us reads as under:
"4. The aforesaid contention of the appellant was considered by the
learned Single Judge. The learned Single Judge has appreciated the
averments made in the application and found the ground stated therein
for non-appearance to be vague. In the said application, the only
statement that was made by the appellants is that despite due diligence,
both the defendants No. 1 and 2 could not put in appearance. However,
the documents filed in support of the contention in the said application
were in the nature of some medical records. The said medical records
which are filed by the appellants in support of the averments made in
the application are of the period prior to the year 1992. The suit was
directed to be proceeded ex parte by an order dated 14.12.2005
whereas the suit filed by the appellants was dismissed for non-
prosecution on 13.09.2004. There is only one medical certificate after
the year 1992, which is of the year December, 1999 to the effect that
Mr. Vijay Kumar Bhatia has angina problem. Persons with such
problems are also prosecuting their cases effectively in Courts and,
therefore, the learned Single Judge did not find sufficient cause either to
recall the order dated 13.09.2004 or to set aside the ex parte decree
passed in the suit.
5. The grounds given are assailed before us by the counsel
appearing for the appellants very vehemently contending, inter alia, that
if the appellant was unwell, in that event the learned Single Judge
should have set aside the ex parte decree and also should have
recalled the order dated 13.09.2004 dismissing the suit filed by the
appellants for non-prosecution and given opportunity to the appellants
to proceed with both the suits.
6 We are, however, unable to accept the aforesaid contention of
the counsel appearing for the appellants for the simple reason that it
appears the suit was coming up to a close as it was at the stage of
recording of evidence. The appellants, at least in the suit filed by the
respondent, should not have defaulted in making appearance and
thereby allowed the suit to be proceeded ex parte. Even thereafter, no
steps were taken by him to get the said order vacated. The record
shows that after the suit was directed to be proceeded ex parte and the
same proceeded accordingly, and an ex parte decree was passed after
about a year of the said date, for the first time an application was filed
FAO (OS) 516/2007 Page 2 of 3
for setting aside the decree. That also on the ground of medical
reasons, which is again unsupported by the documents on records for
the relevant period during which the aforesaid default was committed by
the appellants.
7. There are some further documents sought to be placed on
record which we are not inclined to look into at this stage. They were not
placed before the learned Single Judge, and appear to have been
placed on record as an afterthought. Since those were not placed
before the learned Single Judge, we are not inclined to look at the said
documents".
3. This Court has already come to the conclusion that the appellants are not
entitled for any relief from this Court. There is no merit in this application. Hence the
same is dismissed.
CM No. 11782 (U/O 43 R 2 read with Order 41 Rule 27 (1)(B) and CM No.
11783/08 (under Section 5 of Limitation Act)
4. In view of the order passed in the review application, these applications do not
survive for consideration. The same are accordingly dismissed.
REVA KHETRAPAL, J.
BADAR DURREZ AHMED, J.
January 23, 2009
