M/S Anant Raj Agencies Pvt. Ltd. vs Shri Harwinder Singh Saini & Anr.
2010 Latest Caselaw 2107 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) No.1213/2005

                                        Reserved on : 26.03.2010
                                    Date of Decision : 21.04.2010

M/s Anant Raj Agencies Pvt. Ltd.                 ......Plaintiff
                              Through: Mr.       Harish     Malhotra,
                                          Sr.Adv. with Mr. Neeraj
                                          Malhotra and Ms. Biji
                                          Rajesh, Advocates

                               Versus



Shri Harwinder Singh Saini & Anr.                ...... Defendants
                         Through:         Mr.Sudhir Nandrajog, Sr.
                                          Adv. with Mr.Laliet Kumar
                                          and Mr. Deepak Vohra,
                                          Advocates.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                  YES
2.     To be referred to the Reporter or not ?       YES
3.     Whether the judgment should be reported
       in the Digest ?                               YES

V.K. SHALI, J.

IA Nos.15804/2009 & 3558/2010

1. This order shall dispose of the application bearing IA

No.15804/2009 under Order 9 Rule 13 read with Section

151 CPC. Along with this IA, another application bearing

IA No.3558/2010 was filed under Section 5 of the

Limitation Act for condonation of 65 days‟ delay in filing the

application seeking setting aside the ex parte decree.

2. Briefly stated, the facts leading to the filing of the

application are that the plaintiff filed a suit for specific

performance against the defendants who are husband and

wife in respect of the agreement dated 6th March, 2003 and

permanent injunction in respect of property No.B-5/96,

Safdarjung Enclave, New Delhi measuring 199 sq. yds. The

total sale consideration of the agreement was Rs.62.00

lakhs, out of which a sum of Rs.60.00 lakhs was paid on

5th March, 2003. It is alleged that defendants did not

perfect the title of the plaintiff and accept the balance

amount of Rs.2.00 lakhs and consequently the plaintiff was

constrained to file the present suit. The defendants were

served and they contested the matter. On 18th January,

2007, issues were framed and the case was set for trial.

The plaintiff in support of his case examined only one

witness, namely PW-1, Anil Sarin, Managing Director of the

plaintiff company. No witness was examined by the

defendants‟ counsel on the ground that he had no

instructions. After hearing the learned counsel for the

plaintiff as well as the defendants, a judgment was passed

on 4th September, 2009 decreeing the suit in favour of the

plaintiff and against the defendants. It is this decree dated

4th September, 2009 which has been prayed to be set aside

by the defendants by virtue of the present IA under Order 9

Rule 13 by contending that this was an ex parte decree and

it deserves to be set aside. The ground for setting aside the

ex parte decree set up by the defendants in the application

is that the defendant No.1 was not in touch with his

counsel prior to his moving to Ropar, Punjab where he had

to shift on account of some exigencies. It is alleged that he

was down with Hepatitis at Ropar because of which he was

unable to move. It is also alleged that during the period he

shifted to Ropar, he also suffered from joint dislocation of

his shoulder which further aggravated his problem as a

consequence of which he could not give instructions to his

counsel and lost the track of the matter which culminated

into passing of the judgment. It is alleged that he learnt

about the judgment and the decree having been passed

only on 16th November, 2009 whereupon he filed

application for setting aside the present decree under Order

9 Rule 13 on 1st December, 2009. Originally along with the

application under Order 9 Rule 13, the plaintiff had not

filed any application seeking condonation of delay but

subsequently on 23.3.2010 when the matter was taken up

for arguments, an application under Section 5 of the

Limitation Act was filed seeking condonation of delay of 65

days from the date of his alleged knowledge about the

decree having been passed.

3. The plaintiff has filed the reply to the application under

Order 9 Rule 13 and contested the claim of the defendants

for setting aside the decree on the ground that it cannot be

treated as an ex parte decree. It has been stated in the

reply that the defendants were represented before the

learned Joint Registrar at the time of the recording of the

evidence. It is urged that the learned counsel for the

defendants when called upon to cross examine the witness,

simply stated that he has no instructions. The matter was

listed before the Court and even on enquiry by the Court,

the learned counsel for the defendants stated that he has

no instructions as to why the defendants did not choose to

adduce evidence in rebuttal of the evidence of the plaintiff,

but he contested the matter and argued before the learned

Judge whereupon this culminated into the judgment dated

4th September, 2009 against the defendants.

4. Thus in nutshell, it was contended since the learned

counsel for the defendants had stated before the learned

Joint Registrar that he has no instructions, but he had

argued the matter on merits before the Court and therefore

it could not be said to be an ex parte judgment.

5. With regard to the application for seeking condonation of

delay in filing the application for setting aside the ex parte

decree, the learned counsel stated that although no formal

reply to the said application seeking condonation of delay

has been filed, but the fact of the matter is that the

defendant himself is saying that he learnt about the ex

parte decree having been passed on or about 16th

November, 2009, yet he was careless and did not choose to

file the application for setting aside the alleged ex parte

decree till 1st December, 2009 and this culminated into

delay of 65 days, for which no cogent explanation has been

given by him.

6. I have heard Mr. Harish Malhotra and and Mr. Sudhir

Nandrajog, learned senior counsel on behalf of the plaintiff

and the defendants. I have also perused the record. Mr.

Nandrajog, learned senior counsel on behalf of the

defendants strenuously contended that although the

counsel for the defendants, may have appeared before the

learned Joint Registrar or even before the Court, but the

very fact that the learned counsel had specifically stated

that he has no instructions, clearly shows that this was a

judgment which was passed without there being any

instructions from the side of the defendants and such

judgment has to be construed as an ex parte judgment.

The learned senior counsel has relied on two judgments -

one of the Apex Court and the other of the Allahabad High

Court to support his submission that even in cases where

the counsel for the defendant may have appeared and

stated that he has no instructions, the decree which has

been passed by the Court has been treated to be an ex

parte decree and the same has been set aside by the Court

and opportunity has been given to the concerned party to

adduce evidence and contest the matter.

7. The first judgment which has been relied upon by the

learned senior counsel is a case titled Malkiat Singh Vs.

Joginder Singh AIR 1998 SC 258 and the other is

Allahabad High Court judgment titled Smt. Kalindri Devi

Vs. Baloo & Ors. AIR 1984 Allahabad 9.

8. So far as the question of condonation of delay in filing the

application is concerned, the learned senior counsel

contended that the law regarding condonation of delay in

filing the application has been construed by the Apex Court

very liberally and what has to be seen is not the quantum

of delay but only the bona fides of the party in pursuing the

matter. In the instant case, the defendant in his

application for seeking condonation of delay has given the

explanation for delayed filing of the application under Order

9 Rule 13 and the reason was that he was suffering from

Hepatitis and accordingly was confined to bed. Therefore

there was some delay in filing the application which may be

condoned.

9. Mr. Malhotra, learned senior counsel for the plaintiff has

very vehemently contested the submissions made by the

learned senior counsel on behalf of the defendants. It has

been contended by him that this judgment/decree which

has been passed by the Court on 4th September, 2009 by

no stretch of imagination can be said to be an ex parte

judgment/decree. It has been urged by him that an ex

parte decree is the one where the defendant is not at all

represented before the Court while as in the instant case

the defendant was not only represented but his counsel

contested the matter by arguing before the learned Judge.

The learned counsel has referred para 9 of the impugned

judgment which reads as under :

"9. I have heard the submissions made at the bar by Mr. Neeraj Malhotra, the learned counsel for the plaintiff and Mr. Ravi Gupta, the learned counsel for the defendants and my findings on the issues framed for adjudication are as follows."

10. It was also contended by the learned counsel that the two

judgments which have been relied upon by the defendants

are distinguishable on the facts of the case.

10A. I have considered the rival submissions. In Malkiat

Singh's case (supra), the counsel who had appeared before

the Court had made a statement that he has no

instructions from his client and it was a case where the

appellant who had prayed for setting aside the ex parte

decree was admittedly in jail and further in para 7 of the

said judgment, it was specifically observed that the

appellant in the said case, namely the defendant was not

careless or negligent in pursuing the matter which was

pending before the Court and therefore the Court was

inclined to consider it to be a case where the judgment/

decree which was passed against the appellant in the said

case was considered to be an ex parte decree.

11. As against this, in view of the facts of the present case, the

learned counsel appearing on behalf of the defendants had

stated that he has no instructions as to why the defendant

does not want to cross examine the plaintiff‟s witness or

adduce his defence. Thus, there is a marked difference

between a case where the counsel appears where he does

not have instructions from his client and a case where the

counsel only says that he does not have instructions as to

why the defendant does not want to cross examine the

witness or adduce his defence. In the latter case, it cannot

be said to be a case of no instructions so as to fall within

the parameters of what has been held by the Apex Court in

Malkiat Singh's case.

11A. The case of Smt. Kalindri Devi (supra) is also

distinguishable from the present case on the ground that in

the said case in absence of instructions to the pairokar, it

was held that it was an ex parte decree, but in the instant

case the absence of instructions pertained only to the non-

production of witnesses, yet the matter was argued by the

learned counsel on merits which has been taken note of by

the learned Judge.

11B. An ex parte proceedings are proceedings by one party for

his own benefit and without contest by the other party.

Hariram Rewachand Vs. Pribhdas Mulchand & Ors. AIR

(32) 1945 Sind 98. In the present case, the judgment

indicates that there was a contest and therefore it could not

be said to be ex parte.

12. Moreover, in the present case, the learned counsel

appearing on behalf of the defendants who had stated that

he has no instructions has actually argued the matter

before the learned Single Judge despite the defendant

having chosen not to cross examine the witness and not

adducing any witness. Therefore, this is a very

distinguishing feature of the present case from the case

reported which has been relied upon by the learned senior

counsel for the plaintiff.

13. Because of these reasons, I feel that the judgment/decree

in the instant case can by no stretch of imagination be said

to be an ex parte decree. It was a judgment and a decree

which was passed after the defendant contested through

his counsel though the defendant for the reasons best

known to him had chosen not to adduce any defence or

cross examine the plaintiffs witness on his own peril.

14. In addition to this, even though for the sake of arguments if

it is assumed that learned counsel for the defendants did

not have instructions and it is treated as an ex parte decree

against the defendants, even then one can proceed ahead

and examine as to whether this is a fit case where the ex

parte decree should be set aside against the defendants or

not.

15. Order 9 Rule 13 lays down that an ex parte decree may be

set aside if the defendant has not been served or that the

defendant has been prevented by sufficient cause to appear

before the Court concerned. The exact language of Order 9

Rule 13 is as under :

"13. Setting aside decree ex parte against defendants. - 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 were 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................ ."

16. A perusal of the aforesaid provision would show that the

case of the defendant is not falling in the first category,

meaning thereby that it is not a case where the defendant

says that he has not been served at all. The contention of

the learned counsel for the defendants is that he was

prevented by „sufficient cause‟ from appearing before the

Court, although the word „sufficient cause‟ was not used at

all in the application and the only terminology used in the

application is that his counsel did not have instructions.

The reason which has been given for these non-instructions

by the defendant in the application are that the defendant

had to shift to Ropar on account of ill-health of his mother

whereupon he suffered from infection of Hepatitis and

dislocation of his shoulder which kept him immobilized. It

is also stated in the application that because of this reason

that he was also not able to give instructions to his counsel

and he lost the track of the case. It is stated that it is only

on 16th or just before 16th November, 2009 that he learnt

about the decree having been passed, but he could file the

application for setting aside the decree for the aforesaid

reasons belatedly on 1st December, 2009.

17. The reply to the application has been filed by the plaintiff,

who has contested the claim of the defendants that it

constitutes „sufficient cause‟. It has been specifically stated

by the plaintiff in his reply that the counsel who are

representing the defendants before he was proceeded ex

parte are the same counsel who were representing the

plaintiff now on filing the application under Order 9 Rule

13 CPC. Therefore, it is stated that this is one of the

grounds to show and suspect the bonafides of the

defendants.

18. I have considered this aspect of the matter also. I feel that

not only the bonafides of the defendant are suspect but

even his intentions to prosecute the matter are also

doubtful. The defendant seems to be making contradictory

averments in the different applications as well as in the

same application. To illustrate this, the defendant in his

application under Order 9 Rule 13 has stated that he had

to shift to Ropar where he was down with Hepatitis because

of which he could not talk to his counsel. He is also

making a reference to the dislocation of his shoulder.

Photocopies of the medical certificates and medical papers

have been annexed by the defendants along with the

application.

19. I have perused these medical papers. First of all, even if

the defendant No.1 is given the benefit of doubt that he had

migrated to Ropar and that he was down with Hepatitis, at

least he was not physically prevented to talk to his counsel

on telephone and the same could have been done, but the

defendant in his application says that he was incapacitated

to contact his lawyer and instruct him to lead evidence.

20. One fails to understand as to how if a person is down with

fever or infection, he gets incapacitated. In the application

seeking condonation of delay in filing, it has been stated by

the defendant that even earlier also he was not in touch

with his counsel when he had not shifted to Ropar,

meaning thereby that after entrusting the matter to his

counsel, he was grossly negligent and careless in pursuing

the matter. Further, so far as the medical certificates

which have been produced by him are concerned, the first

certificate dated 30th October, 2009 which is issued by Dr.

Yashpal Puri is concerned, it shows that defendant No.1 is

suffering from infection of Hepatitis and has been advised

rest from 30th October, 2009 to 28th November, 2009 while

as the certificates which have been adduced to indicate that

he was under his treatment are issued from 1st July, 2008

onwards. The medical certificates bear a printed note that

these certificates are not to be used for legal purposes.

Therefore, this clearly shows that either the certificates are

procured ones or the certificates have been obtained by the

defendant from the said doctor without disclosing the

purpose for which he was getting the certificates issued by

him. It is common knowledge that these kind of self-

serving documents can be manufactured by any person in

any quantity and number, especially from the doctors who

are obliging and who only thrive in issuing such certificates

for consideration. Therefore, these certificates are not the

type of certificates, which inspire confidence or are not of

the nature which can be construed to be constituting

„sufficient cause‟ which might have prevented the defendant

from not giving instructions to his counsel.

21. Even if it is assumed in favour of the plaintiff for the sake

of arguments that these were the grounds on the basis of

which he was not in a position to give instructions to his

counsel, we may proceed further and see as to whether the

defendants were genuinely and in a bona fide manner

prevented by sufficient cause in pursuing their matter. For

this purpose, if one sees the averments made in the

application filed under Section 5 of the Limitation Act, the

only irresistible conclusion which one can draw is that not

only the defendant was negligent and careless but he had

practically taken for granted that this is the methodology

which he will follow to indulge in dilatory tactics to avoid

the decree being suffered by him. In the application

seeking condonation of delay in filing the application for

setting aside the ex parte decree, though defendant No.1

has stated that he learnt about the decree having been

passed which is just before 16th November, 2009, yet he

chose to wait for almost more than two months before he

filed the application under Order 9 Rule 13 for setting aside

the ex parte decree on 1st December, 2009. This aspect

becomes relevant because the judgment in Malkiat

Singh's case (supra), which was a case of no instructions,

the Apex Court has specifically observed that the party had

specifically stated that he was not careless or negligent and

further the record also showed that there was no

carelessness or negligence on the part of the appellant in

the said case in pursuing the matter while as in the instant

case, not only there is no such averment but there is prima

facie ample proof to the contrary that the defendants were

not only careless but also negligent in pursuing the matter

and this gets fortified by his own averment where he says

that he was not in touch with his counsel even before filing

of the application for setting aside the ex parte decree.

22. For the reasons mentioned, I am of the considered opinion

that the decree dated 4th September, 2009 which has been

passed in the instant case cannot be said to be an ex parte

decree which will warrant entertaining of the application of

the defendants under Order 9 Rule 13 and even if it is

assumed for the sake of arguments that this is an ex parte

decree falling within the ambit of Order 9 Rule 13, even

then it is held that this is a case where the defendant has

not been able to prove that he was prevented by „sufficient

cause‟ from appearing before the Court much less was the

„sufficient cause‟ shown by the defendant in filing the

application seeking condonation of delay in filing Order 9

Rule 13 application. On the contrary, one gets a feeling

that this was an application filed only to delay the

execution of the decree in a well-planned and thought-out

manner first to absent from the Court proceedings by

taking the false, frivolous plea of no instructions and then

file an application for setting aside the ex parte decree. The

Court is of the opinion that both the applications seeking

condonation of delay as well as for setting aside the ex

parte decree are totally false, frivolous and accordingly both

these applications are dismissed with a cost of Rs.25,000/-

each.

V.K. SHALI, J.

April 21, 2010 skw