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.11770-11712 in FAO (OS) 512/2007
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. 11770/08 in FAO (OS) No. 512/07:
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.
FAO (OS) 512/2007 Page 1 of 3
2. An appeal was preferred by the appellants against the order dated 6 th July,
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
FAO (OS) 512/2007 Page 2 of 3
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 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. 11771 (U/O 43 R 2 read with Order 41 Rule 27 (1)(B) and CM No.
11772/08 (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
