Sh. Gurmail Singh vs Sh. Varender Anand
2010 Latest Caselaw 4642 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


+          IA Nos.5907 & 5492/2010 in CS(OS) 1995/2006

                                    Date of Decision: October 01, 2010

       SH. GURMAIL SINGH                                 ........Plaintiff
                      Through:            Mr.Pramod Ahuja, Advocate.

                       Versus

       SH. VARENDER ANAND                                  ......Defendant
                     Through:             Mr.Ravi Gupta, Senior Advocate
                                          with Ch.Ranjit Singh, Advocate.
%      CORAM:
       HON'BLE MS. JUSTICE ARUNA SURESH

(1)    Whether reporters of local paper may be allowed to see the
       judgment?

(2)    To be referred to the reporter or not?

(3)    Whether the judgment should be reported in the Digest?

                            JUDGMENT

ARUNA SURESH, J.

IA No.5492/2010 (for delay)

1. This is an application filed by the plaintiff under Section 5 of

the Limitation Act seeking condonation of delay in filing the application for

restoration of his suit, being IA No.5907/2010.

2. It is alleged in the application that plaintiff was neither

informed of nor had the knowledge of the dates 11th September, 2009 and

15th February, 2010 fixed in the case by his Advocate. He landed in India on

4th April, 2010 and came to Delhi on 15th April, 2010. When he contacted his

counsel, he was told that the case had been dismissed in default on 15th

February, 2010. It is submitted that plaintiff was in the knowledge of

dismissal of the case but, since his previous counsel did not inform him about

the same, he could not prosecute his case on the dates fixed and suffered the

impugned order.

3. Without going into the merits of the application, it is allowed

and delay of 40 days in filing the application for restoration of the suit is

hereby condoned.

IA No.5907/2010 (Order 9 Rule 9 r/w Section 151 CPC)

4. This application was filed by the plaintiff on 26th April, 2010.

It is submitted by Mr.Pramod Ahuja, counsel for the plaintiff that plaintiff is

80 years old and is a Non-resident Indian. He is permanent resident of

Birmingham, UK. He had engaged the services of Mr.G.S.Sawhney,

Advocate, who is having his office in Chandigarh as well as in London. It is

submitted that Mr.Sawhney did not inform him of the next date of hearing,

otherwise he would have come to the Court on the date of hearing; that he

was informed by his counsel that the case was fixed for 14th April, 2010 and

therefore, plaintiff came to India on 4th April, 2010. It is further submitted

that since plaintiff did not know anyone in Delhi, he went to Jalandhar and

stayed there with some relative. Thereafter he contacted his previous counsel

(Mr.Pramod Ahuja now representing the plaintiff in the applications) to

watch the proceedings on 14th April, 2010. However, 14th April, 2010 was

declared a holiday. His counsel did not find this matter listed either for 14th

April or for 15th April, 2010 and thereafter he came to know that the suit was

dismissed in default on 15th February, 2010.

5. It is also argued that plaintiff is suffering from arthritis, blood

pressure and has been recently operated upon his right knee on 6th June, 2009

and is likely to be operated for his left knee in future but, he could not be

operated as he came to India to take care of his cases; he remains in stress

and anxiety, does not sleep properly and he lost his appetite and therefore,

there are sufficient reasons for restoration of the suit.

6. While controverting the submissions made by counsel for the

applicant/plaintiff, it is urged by Mr.Ravi Gupta, Senior Counsel appearing

on behalf of the defendant that plaintiff has taken contradictory stand in the

application, when, he has stated at one stage that he was not informed the

next date of hearing by his counsel, whereas, subsequently he has stated that

he was informed about the next date as 14th April, 2010 by his counsel. This

clearly indicate that a false story has been build up by the plaintiff to make

out sufficient cause for setting aside the impugned order. He has pointed out

that though plaintiff had come to India as alleged and had gone to Jalandhar

but, did not care to come to Delhi and asked his counsel to watch the

proceedings only. Affidavit annexed to the application is purported to have

been attested by an Oath Commissioner at Delhi, whereas, Mr.Ahuja is

alleged to have sent his Clerk to Jalandhar to get the affidavit and the

application signed. Affidavit does not bear the name of the Oath

Commissioner, his seal and his registration number etc., which creates a

doubt if at all this affidavit has been attested by an Authorized Oath

Commissioner or not.

7. Admittedly, case was listed for 11th September, 2009 on behest

of counsel for the parties for reporting the settlement, if any. On that day

none appeared on behalf of the plaintiff. On 15th February, 2010 none was

present on behalf of the plaintiff. Under these circumstances, Court

dismissed the suit of the plaintiff in default. Absence of the plaintiff or his

counsel on 15th February, 2010 and prior to that on 11th September, 2009

could be attributed to a settlement, which might have arrived at between the

parties, as noted in the order dated 16th July, 2009. Mr.G.S.Sawhney,

Advocate is also based in London, where he was engaged by the plaintiff.

There is nothing on record to prove that Mr. Sawhney had informed the

plaintiff that the matter was listed for 14th April, 2010. Be that as it may,

plaintiff as per his own case came to know of the dismissal of the suit on 15th

April, 2010. This application was filed on 26th April, 2010 i.e. after about

eleven days of the plaintiff coming to know of the dismissal of the suit.

8. Mr. Pramod Ahuja, counsel appearing for the plaintiff has been

appearing on his behalf since the inception of the suit i.e. on 18th October,

2006. Mr.Sawhney appeared on the scenario only on 26th May, 2008 when

he informed the Court that he had been engaged in the case on that day itself

and he needed time for inspection of the records. It is pertinent that

Mr.Pramod Ahuja continued to represent the plaintiff as he never sought his

discharge nor plaintiff requested the Court to discharge Mr.Pramod Ahuja

from the record as his lawyer. After dismissal of the suit, present application

has been filed on behalf of the plaintiff by Mr.Ahuja. On 26th April, 2010,

this application came up for hearing on 28th April, 2010 when notice of the

application was ordered to be served against the defendant for 2nd June, 2010.

It is of importance that even on 7th May, 2010 when an application was filed

by the plaintiff being IA No.6069/2010 seeking discharge of

Mr.G.S.Sawhney, Advocate from the record, none appeared on his behalf to

pursue the said application. In the absence of the plaintiff, application was

allowed by the Joint Registrar on the said date and Mr.Sawheny was

discharged from the record. Therefore, till 7th May, 2010, Mr.Sawhney

continued to represent the plaintiff. It is significant that application is not

supported by an affidavit of Mr.Sawhney regarding the wrong noting of the

date or wrong information submitted to the plaintiff about the date fixed by

the Court.

9. Plaintiff is reported to have come to Delhi on 4th April, 2010 to

pursue his cases pending in Delhi Courts. Surprisingly, he did not stay in

Delhi but, went to Jalandhar. He is alleged to have instructed Mr.Ahuja only

to watch the proceedings to be conducted in this case on 14th April, 2010.

Obviously, till 14th April, 2010, Mr.Ahuja was not instructed by the plaintiff

to appear as his counsel in the case. Since the case had already been

dismissed in default, it could not have found mention in the 'Cause List' of

15th April, 2010 as 14th April, 2010 was declared a holiday. Instructions to

Mr.Ahuja, Advocate were issued from Jalandhar. Meaning thereby, plaintiff

never came to Delhi to watch the proceedings of the case. Absence of the

plaintiff itself nullifies his case that he had come to India to watch and

monitor the progress of his cases. Had it been so, he would have stayed in

Delhi, meet his lawyers to know the fate of the case and nature of

proceedings for which it was being listed.

10. During the course of arguments, Mr.Ahuja submitted that since

plaintiff is an old man of 82 years of age and was not having any person or

relative in Delhi, he went and stayed at Jalandhar. He had sent one of his

people to Jalandhar to get the documents like affidavit etc. signed from him.

Interestingly, plaintiff has not disclosed the name of his relative with whom

he stayed at Jalandhar. Even when asked, plaintiff could not disclose the

name of the relative with whom he stayed at Jalandhar. In fact, counsel for

the plaintiff conceded that plaintiff had no relative at Jalandhar. Plaintiff is

an NRI and if he had come to India to monitor his cases, he could have

stayed in any of the hotels and did not need a relative or a friend at Delhi for

his boarding and lodging. As submitted, he had stayed there with some

Texiwala, which he could have done in Delhi as well. It is submitted that

plaintiff did not stay at Delhi because he feared danger to his person from the

defendant. Again, these submissions are not born out from the record.

Besides, fear of the plaintiff, of being physically injured, in the absence of

any action on the part of the defendant is unfounded and seems to be a made

up story.

11. Surprisingly, plaintiff has not disclosed the place where he

landed in India but, definitely not at Jalandhar. No document like passport,

visa, boarding tickets etc. have been placed on record to convince the Court

that plaintiff had come to India on 4th April, 2010 for prosecuting his cases.

It might be that he never came to India and the application as well the

affidavit were signed by him at Birmingham, UK. Plaintiff has been blowing

hot and cold in the same breathe.

12. Conspicuously, when plaintiff did not come to Delhi and the

application as well as the affidavit were signed by him at Jalandhar, the

affidavit annexed to the application could not have been sworn by him at

Delhi. Deponent has been identified by Mr.Pramod Ahuja, Advocate as the

person who had signed in his presence at Delhi. This affidavit was executed

and attested on 26th April, 2010. I do find the seal of the Oath Commissioner

of Tis Hazari Courts, Delhi on the affidavit. However, signatures of the Oath

Commissioner are not legible and the name of the Oath Commissioner, who

has attested this affidavit does not find mention either on the seal or on the

affidavit issued by the Oath Commissioner. How could an affidavit be

attested by an Oath Commissioner at Delhi in the absence of the deponent

goes unexplained. If that is so done, then the Oath Commissioner has

violated the rules governing the attestation of an affidavit by an Oath

Commissioner and has also exceeded his powers. In case, Oath

Commissioner acted bona fidely, then plea of the plaintiff that he never came

to Delhi and that he had stayed at Jalandhar, where he had signed the

documents is false. It is concluded that plaintiff has failed in his efforts to

convince the Court that he did not know about the fate of the case and was

wrongly informed by his previous counsel that it was listed for 14th April,

2010.

13. Much has been talked about the old age of the plaintiff and

various ailments, he is suffering from. He is stated to be a man of 82 years of

age, having operated upon his right knee on 6th June, 2009 and is to be

operated upon his left knee. He is stated to be a patient of arthritis and blood

pressure. The fact remains, plaintiff could travel all the way from

Birmingham to India to attend to his cases but, did not care to come to Delhi

to prosecute the present case. Loss of appetite is natural because of old age.

It is not the case of the plaintiff that he is immobile or is bed-ridden.

Allegedly plaintiff is not able to sleep properly because of stress of these

cases. However, he himself does not want to come out of the stress by

prosecuting his cases diligently. These submissions and averments made by

the plaintiff are not supported by any medical record. Withholding of

medical record, passport etc. raise an adverse inference against the plaintiff

that pleas taken by him are false and frivolous to his own knowledge and

had the records been produced, they would have gone against the case of the

plaintiff himself.

14. It is not in dispute that word "sufficient cause" is to be

construed liberally so as to advance substantial justice. However, when

Court comes to a conclusion that plaintiff has been negligent in prosecuting

his case and his non-action and want of bona fide are clearly imputable, the

Court would not help such a party. "Sufficient Cause" is an elastic

expression for which no hard or fast guidelines can be laid down.

Therefore, Court has to decide on the facts of each case as to whether the

plaintiff who has suffered dismissal of the suit 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. There

is no absolute preposition of law that all the cases of mistakes on the part of

the advocate or pleader would constitute sufficient cause. What is to be seen

is as to whether absence of the advocate was bona fide.

15. As discussed above, absence of Mr.G.S.Sawhney, Advocate

on two dates of hearing before the Joint Registrar goes unexplained and in

the absence of any explanation, this Court cannot infer the absence as bona

fide. Callous conduct of the lawyer is required to be examined in

conjunction with the conduct of the plaintiff, who had engaged him, i.e.

whether he was pursuing his case diligently or the conduct or approach was

so callous that it amounted to negligence. If that is so, then non-appearance

would not be bona fide and it would not constitute sufficient cause within

the meaning of Order 9 Rule 9 CPC. Cumulative effect of all the relevant

factors and conduct of the plaintiff, as highlighted above is that he was

callous, negligent and it clearly indicate that he was not pursuing his case

diligently.

16. Under the circumstances of the case and in view of aforesaid

discussion, it is concluded that plaintiff has not come to the Court with

clean hands. He has tried to build up a story to get the dismissal order dated

15th February, 2010 set aside. Hence, non-appearance of the plaintiff or his

counsel on 15th February, 2010 cannot be considered as bona fide and

therefore, does not constitute 'sufficient cause'.

17. Hence, application, being without any merit, is hereby

dismissed. There are no orders as to costs.

ARUNA SURESH (JUDGE) OCTOBER 01, 2010 sb