Faeel Ahmed & Ors. vs Islam Ahmed
2011 Latest Caselaw 2022 Del

              IN THE HIGH COURT OF DELHI AT New Delhi

                           C.M.(M) No.1274/2009

                                     Date of Decision:- 07.4.2011


       Faeel Ahmed & Others                             ....... Petitioners
                                           Through:     Mr. Javed Ahmad,
                                           Adv.
                           Versus

       Islam Ahmed                                    ...... Respondent
                                     Through: Mr. Shakeel Ahmad, Adv.

       CORAM:
       HON'BLE MR. JUSTICE S.L. BHAYANA

       1.     Whether reporters of local paper may be
              allowed to see the judgment?                    Yes
       2.     To be referred to the reporter or not?          Yes
       3.     Whether the judgment should be referred in
              the Digest?                                     Yes


S. L. BHAYANA, J.

The present petition under Article 227 of the Constitution of India

has been filed by the petitioner against the order dated 30.3.2009

passed by the Trial Court, wherein application to lead additional

evidence has been dismissed.

2. The brief facts of this petition are that the respondent instituted a

suit for possession and declaration against the petitioners. The

petitioners engaged Mr. Mushahid Ali, Advocate to contest their above

stated suit, wherein the written statement was also filed on behalf of the

petitioners. Petitioners counsel took them in confidence that since it is

a civil matter therefore, it is not essential for them to appear on each

and every date of hearing and whenever their presence in the court will

be required, he will inform the petitioners.

3. The petitioners advocate Mr. Mushahid Ali did not inform the

petitioners for some time and himself remained unavailable. Later on

the petitioners came to know that their counsel is engaged in some

criminal case and is, therefore absconding.

4. The petitioners engaged another counsel, who inspected the file

on 27.5.2008 from whom the petitioners came to know that the earlier

counsel had not appeared on 2.7.2007 and also on subsequent dates

therefore, they were proceeded ex-parte on 2.7.2007.

5. The petitioners filed an application under Order 9 Rule 7 read with

Section 151 of Code of Civil Procedure and Section 5 of the Limitation

Act for setting aside the ex-parte order. However, the said application

has been dismissed by the Trial Court on 30.3.2009. Thereafter, the

petitioners filed an appeal against that order before the Court of,

Learned ADJ wherein it was observed that this appeal is not

maintainable against the order of dismissal dated 30.3.2009 as only

Civil Miscellaneous Petition is maintainable before the High Court as

such the petitioners withdrew their appeal with liberty to file the present

petition vide order dated 11.9.2009.

6. I have heard the arguments preferred by the counsel for the

parties and perused the record carefully. The main contention of the

petitioners is that, there was no willful or intentional absence on the

part of the petitioners before the Trial Court on 2.7.2007 or on

subsequent dates. But it was because of their previous counsel

Mr.Mushahid Ali, who neither appeared nor informed the petitioners

regarding the matter.

7. The petitioners have engaged a new counsel who after inspecting

the file moved an application for setting aside the ex-parte order.

Therefore, the delay on the part of the petitioners is neither willful nor

intentional.

8. On the other hand the counsel for the respondent has argued that

the present petition should not be allowed as the case has now been

listed for final arguments.

9. Learned counsel for the respondent has further stated that It is also

clear from the orders passed by the learned trial Court on different

dates that the petitioners were not diligent in pursuing their case as the

petitioners have filed an application under Order IX Rule 7 read with

section 151 of CPC and section 5 of Limitation Act against on 27.5.2008

against the ex-parte order dated 2.7.2007.

10. Arguments heard. Admittedly the application for setting aside the

ex-parte order has been moved by the petitioners after about 11

months of the passing of the impugned order. But the petitioner should

not suffer on account of the fault of their counsel. The petitioners were

not vigilant and diligent in pursuing their case before the trial Court. If

the ex-parte order is not set aside the petitioners will suffer an

irreparable loss. So in my opinion interest of justice will be served if the

petitioners are permitted to contest the suit on merits.

11. In view of the discussion made above, the impugned order

dated30.3.2009 is set aside subject to the payment of cost of

Rs.20,000/- by the petitioners to the respondent before the trial Court.

12. With these observations the petition is allowed.

13. A copy of this order, be sent to the trial Court for compliance.

S.L. BHAYANA, J.

April 07, 2011