Delhi High Court

M/S Dubey Builders & Industries & ... vs Sh. Birdh Raj Bhandari on 5 November, 2009

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

          FAO No.239/1992 & CM No. 3265/1992

%            Judgment reserved on: 27th October, 2009

             Judgment delivered on: 5th November, 2009

    1. M/s Dubey Builders & Industries,
       2, Kanal Raod, Jammu,
       Through its partner Sh. Pawan Kumar.

    2. Shri Bipan Sharma
       S/o Sh. Nek Ram,
       R/o 61/C/CD, Gandhi Nagar,
       Jammu.


                                           ....Appellants

                   Through:      Mr. Peeyoosh Kalra,
                                 Adv.

                  Versus

      Sh. Birdh Raj Bhandari,
      S/o Late Balwant Raj Bhandari,
      R/o 16, Netaji Subhash Raod,
      Calcutta.

                                         ....Respondent.

                      Through: Mr. Rana Mukharjee
                      with Mr. I. Ghosh and Sandeep
                      Mahapatra, Advs.

Coram:

HON'BLE MR. JUSTICE V.B. GUPTA



FAO No.239/1992                                Page 1 of 15
 1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes



V.B.Gupta, J.

In this appeal, there is challenge to order dated

21st November, 1992, passed by Additional District

Judge, Delhi. Vide impugned order, application under

Order 9 rule 13 of the Code of Civil Procedure (for

short as „Code‟) filed by appellants was dismissed.

2. Respondent herein, filed suit for possession and

mandatory injunction against the appellants. Initially,

suit was contested by appellants who filed their written

statements. On 20th November, 1991, matter was

adjourned to 6th February, 1992 for arguments on

injunction application as well as for documents,

admission/denial and issues. On that day only counsel

for respondent appeared, while none was present on

behalf of appellants. After waiting till 2.30 P.M,

appellants were proceeded ex parte. Vide judgment,

dated 30th March, 1992, suit was decreed ex parte, in

favour of respondent. On 6th May, 1992, appellants

filed application under Order 9 Rule 13 of the Code, for

setting aside ex parte decree dated 30th March, 1992.

After recording evidence, trial court dismissed the

application.

3. It is contended by learned counsel for appellants

that appellants are resident of Jammu and their earlier

counsel did not inform them about the date of hearing.

When appellant came to Delhi, on contacting his

advocate, he came to know that matter has already

been decided ex parte against them. Appellant

engaged another counsel and thereafter, filed the

present application. The counsel noted wrong date and

did not inform them.

4. It is also contended that date of knowledge of

passing of ex parte decree is 4th May, 1992 and if this

date is taken as date of knowledge, then present

application is not time barred. It is also argued that

for mistake of counsel, appellants cannot suffer and

there are sufficient grounds for setting aside ex parte

decree.

5. On the other hand, it is contended by learned

counsel for respondent that on 6th February, 1992

matter was listed for admission/denial also. On that

date, appellant was supposed to be present. It is

further contended that present application is

hopelessly time barred, as ex parte decree was passed

on 30th March, 1992 while application for setting aside

the same was filed only on 6th May, 1992.

6. Other contention is that, there are contradictions

in the averments made in the application, as well as in

the evidence given by the appellant and earlier

counsel. So, no ground is made out for setting aside ex

parte decree. In support, learned counsel for

respondent relied upon Salil Dutta Vs. T. M. And M.

C. Private Ltd. (1993) 2 Supreme Court Cases

185. In this case it was observed:

"The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanor of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."

7. Grounds for non appearance on the date of

hearing have been mentioned in para 5 and 6 of the

application, which read as under:

"5. That the defendant no. 2 came to Delhi on 4.5.1992 and met his counsel and enquired about the date of hearing of the case, the counsel was unable to tell the next date then the defendant no. 2 made enquiry from the staff of this Hon‟ble Court and came to know that the suit was decreed exparte on 30.3.1992. Thereafter the defendant no. 2 engaged the present counsel who inspected the case file hence the present application.

6. That the absence of the defendants on the adjourned date i.e. 6.2.1992 was for the above mentioned reasons. The absence was bonafide and unintentional and was for the reasons that the learned counsel for the defendants never informed the defendants regarding the date of hearing and never required the defendants to be present in court."

8. As per these averments, appellant no. 2 came to

Delhi on 4th May, 1992 and met his counsel and

enquired about the date of hearing but the counsel was

unable to tell the next date. It was only on enquiry

made from the staff of the Court, appellant no. 2 came

to know that the suit was decreed ex parte on 30th

March, 1992.

9. On the other hand, previous counsel of appellants

Sh. Ajay Kumar (AW-2) in his deposition stated that he

appeared on the last date of hearing i.e. 20th

November, 1991 and noted next date of hearing in his

diary as 6th May, 1992. He realized his mistake in

noting a wrong date only when his client had informed

him on 5th May, 1992.

10. In cross-examination, AW-2 stated that Mr. Pawan

Kumar (who is partner of appellant no. 1) was

contacting him on behalf of appellants. Appellants

contacted him lastly in May, 1992. He further stated

that appellants contacted him on 4th May, 1992 and he

was not aware about the progress of the case. When

appellant came to know on 5th May, 1992 that ex parte

has already been passed, then he was informed

accordingly. AW-2 further stated that appellants on

4th / 5th May, 1992 did not contact him personally but

contacted on telephone.

11. Statement of Sh. Ajay Kumar (AW-2), runs

contrary to the averments made in para 5 of the

application, as AW-2 states that appellant came to

know on 5th May, 1992 that the ex parte has already

been passed and then he (AW-2) was informed. In the

same breath, this witness states that appellants on 4th

/5th May, 1992, did not contact him personally but

contacted on phone.

12. On the other hand, in para 5 of the application it

is stated that on 4th May, 1992, appellant no.2 came to

Delhi and met his counsel and enquired about the date

of hearing. In cross-examination AW-1 (appellant no.

2) categorically stated that after 4th May, 1992 he did

not meet his counsel. Thus, there are contradictions in

the statements of AW-1 and AW-2.

13. In entire application it is no where stated as to on

which date, appellant no. 2 made enquiry from the

staff of Court and on which date he came to know that

the suit was decreed ex parte on 30th March, 1992.

14. AW-1 Sh. Vipin Sharma (appellant no.2) in

examination-in-chief does not state at all about

meeting his lawyer on 4th May, 1992. On the other

hand, he states that " when he came to Delhi on 4th

May, 1992, he came to know that an ex parte order has

been passed against them." Thereafter, he came to

know from the Court that a decree has been passed

against them.

15. AW-1 is silent about meeting his counsel (AW-2)

nor AW-1 in his entire statement stated that he

contacted his counsel on telephone, either on 4th or 5th

May, 1992.

16. Trial court in this regard observed;

"Considering the submissions made in the application under Order 9 Rule 13 CPC and the evidence of the applicant, it appears that there are some material contradictions. In para 5 of the application it is stated that the defendant no. 2 met his counsel and inquired about the date of hearing of the case. The counsel as pleaded, was unable to tell the next date. The statement of the counsel as AW-2 about the wrong noting of the date in his diary is thus in contradiction to the statement in para 5 of the application and is beyond pleadings. The application under Order 9 Rule 13 CPC is based on the assurance of the counsel as contained in para 3 and 4 of the application that he will continue to inform the defendants about the progress of the case. However, the counsel states a different story of noting the wrong date. It is not pleaded in the application. This fact is also belied when there is specific statement that the defendant no. 2 met his counsel

on 4.5.1992. But not on telephone as stated by the counsel itself as AW-2."

17. The case of appellants does not appear to be

convincing at all. Wrong noting of date by the counsel,

is a very lame excuse and not much relevance can be

placed on it. Appellants have put entire blame on their

previous counsel. However, considering the

circumstances of the case, it cannot be said that

appellants acted diligently either.

18. Sh. Ajay Kumar (AW-2), no where states that he

assured the appellants, that they should not appear on

each date and their interest will be looked after by

him. Admittedly, on 6th February, 1992 matter was

fixed for the purpose of admission/denial and for this

purpose, parties are required to be present in person.

19. Another interesting feature in this case is that, as

per statement of AW-1 (appellant no. 2), his brother

Pawan Dubey (partner of appellant no.1) was dealing

with his counsel. There is no mention of this fact in the

application. It is nowhere mentioned in the application,

as to what was the next date of hearing as noted by

Pawan Dubey when, admittedly he (Pawan Dubey) was

dealing with the counsel and was contacting the

counsel.

20. Rule 13 of Order 9 of Code reads as under:

"Rule-13 Setting aside decree ex parte against defendant- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also.

[Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had

notice of the date of hearing and had sufficient time to appear and answer the plaintiff‟s claim.] [Explanation-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree]"

21. It is well settled that "sufficient cause" as per this

provision, for non appearance in each case, is a

question of fact. This Court in New Bank of India

Vs.M/s. Marvels (India): 93(2001)DLT558, held;

"No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this

aspect cumulative effect of all the relevant factors is to be seen."

22. Appellants in the present case, have taken the

court proceedings very casually. It is not that

appellants are illiterate or ignorant villagers. Since,

Pawan Dubey (partner of appellant no. 1) and brother

of appellant no. 2, was pursuing the matter and

contacting the counsel, thus appellants are not

justified in shifting the entire blame on their counsel.

23. In Indian Sewing Machines Co. Pvt. Ltd. Vs.

Sansar Machine Ltd. and Anr., 56 (1994) Delhi

Law Times 45, it was observed;

"The question to be examined is whether the responsibility of the defendants as a litigant comes to an end merely by engaging a counsel and should not a litigant show diligence on his part."

24. In Ravinder Kaur Vs. Ashok Kumar and Anr.,

(2003) 8 Supreme Court Cases 289, it has been

laid down that;

"Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system".

25. In view of the above discussion, no ambiguity or

illegality is there in the impugned order. Present

appeal is most bogus and frivolous one and has been

filed just to delay the proceedings. Appellants have

succeeded in delaying the execution of decree for more

than 17 years. Under these circumstances, this appeal

is dismissed with costs of Rs. 30,000/- (Thirty

Thousand Only).

26. Appellants are directed to deposit the costs with

Registrar General of this Court within one month from

today, failing which the same shall be recovered in

accordance with law.