Delhi High Court
Shri Ankit Singh Dabas And Anr. vs Shri Kuldeep Singh And Another on 3 February, 2011
Author: V. K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 03.02.2011
+ CS(OS) No. 622/2007
SHRI ANKIT SINGH DABAS AND ANR. .....Plaintiff
- versus -
SHRI KULDEEP SINGH AND ANOTHER .....Defendant
Advocates who appeared in this case:
For the Plaintiff: Mr. R.S. Tomar
For the Defendant: Mr. Deepak Khadaria & Mr. Arun Mehta
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported No
in Digest?
V.K. JAIN, J. (ORAL)
IA Nos. 4376/2010 (u/O 37 R 4 CPC), 4377/2010 (u/O
37 R 3 & 4 CPC) & 4378/2010 (delay)
1. This is a suit filed under Order 37 of CPC.
A perusal of the order of this Court dated 8th April
2009 shows that in response to summons for judgment
served on defendant No.1, he filed his application seeking
leave to contest the suit. However, nobody appeared for
defendant No.1 on 10th February 2009, 23rd March 2009
and 8th April 2009. The application, therefore, was
dismissed for non-prosecution and consequently a decree
for recovery of Rs.14 Lacs with costs and interest at the rate
of 12% per annum w.e.f. 1st August 2003 was passed in
favour of the plaintiff and against defendant No.1.
2. The case of the applicant/defendant No.1 is that
late Sh. Pramod Kumar Sharma, Advocate whom he had
engaged for the purpose of this suit, unfortunately expired
on 16th October 2008 and, therefore, could not appear when
the matter was listed. It is alleged in the application that
the applicant was not aware of the demise of late Sh.
Pramod Kumar Sharma, Advocate and was in a belief that
the matter was being looked after. It is further alleged in
the application that on receipt of notice for execution of
decree, it was revealed that a decree had been passed in the
absence of the applicant, who claims to be government
employee.
3. IA 4377/2010 has been filed for staying the
execution of the decree whereas IA 4378/2010 has been
filed seeking condonation of delay in filing IA 4376/2010.
4. The applications have been opposed by the
plaintiff/decree holder. It has been pointed out in the reply
that appearance was filed by defendant No.1 through Sh.
Prakash Arya, Advocate and Sh. Pramod Kumar Sharma,
Advocate was never engaged by the applicant/defendant
No.1.
5. A perusal of the orders passed by this Court from
time to time would show that Mr. Pramod Kumar Sharma,
Advocate appeared on behalf of applicant/defendant No.1
on 30th November 2007, 7th April 2008, 8th May 2008, 3rd
July 2008 and 3rd October 2008, though no Vakalatnama in
his favour has been filed. Appearance of Mr. Pramod Kumar
Sharma, on a number of hearings, does support the case
setup by the applicant that he was engaged by him for the
purpose of this suit. Even otherwise, I see no good reason
for a defendant to deliberately absent and suffer a decree,
after he has not only engaged an advocate, but also put in
appearance and applied for leave to contest.
6. The applicant/defendant No.1 has filed an affidavit
purporting to be sworn by Sh. Sanjay Sharma, brother-in-
law of late Sh. Pramod Kumar Sharma, Advocate. In his
affidavit, Mr. Sanjay Sharma has stated that Smt. Manjula
Sharma, wife of late Sh. Pramod Kumar Sharma had
contacted him to help her in returning the briefs/files of the
cases which are being handled by the deceased and the file
of this case was also lying in the office of late Sh. Pramod
Kumar Sharma and was being handled by him. He has
further stated that defendant No.1/applicant Kuldeep Singh
contacted him on 10th March 2010 to receive the brief/file of
the above noted case and the complete file was returned and
handed over to him.
7. In view of the provisions contained in Rule 4 of
Order XXXVII of CPC, the Court may, under special
circumstances, set aside the decree and if necessary stay or
set aside execution and may also give leave to the defendant
to defend the suit. While doing so, the Court may impose
appropriate term on the defendant.
8. The expression special circumstance has neither
been defined nor is it capable of a precise definition, since
no one can enumerate or even contemplate circumstances
which may amount to sufficient cause which could prevent
the defendant from appearing and defending the suit filed
against him. It is however difficult to say that if an
advocate, on account of reasons beyond his control is not
able to appear or if there is default in representation of the
defendant on account of demise of his advocate, it would
not constitute special circumstance within the meaning of
Rule 4 of Order XXXVII of CPC. In Rafiq & Anr. vs.
Munshilal & Anr. (1981)2 SCC 788, while considering an
application for restoration of an appeal which had been
dismissed in default due to non-appearance of advocate,
Supreme Court inter alia observed as under:-
"The disturbing feature of the case is that
under our present adversary legal system
where the parties generally appear
through their advocates, the obligation of
the parties is to select his advocate, brief
him, pay the fees demanded by him and
then trust the learned Advocate to do the
rest of the things. The party may be a
villager or may belong to a rural area and
may have no knowledge of the court's
procedure. After engaging a lawyer, the
party may remain supremely confident
that the lawyer will look after his interest.
At the time of the hearing of the appeal,
the personal appearance of the party is
not only not required but hardly useful.
Therefore, the party having done
everything in his power to effectively
participate in the proceedings can rest
assured that he has neither to go to the
High Court to inquire as to what is
happening in the High Court with regard
to his appear nor is he to act as a
watchdog of the advocate that the latter
appears in the matter when it is listed. It
is no part of his job...
...What is the fault of the party who
having done everything in his power
expected of him would suffer because of
the default of his advocate. If we reject
this appeal, as Mr. A.K. Sanghi invited us
to do, the only one who would suffer
would not be the lawyer who did not
appear but the party whose interest he
represented. The problem that agitates
us is whether it is proper that the party
should suffer for the inaction, deliberate
omission or misdemeanor of his agent.
The answer obviously is the negative."
9. Taking into consideration all the facts and
circumstances of the case, including the affidavit of Mr.
Sanjay Sharma, brother-in-law of late Sh. Pramod Kumar
Sharma, Advocate, I am of the view that the judgment and
decree passed by this Court on 8 th April 2009, needs to be
set-aside, though subject to appropriate condition. The
judgment and decree dated 8 th April 2009 is accordingly set-
aside subject to applicant/defendant No.1 paying cost of
Rs.5,000/- and also furnishing a bank guarantee of
principal amount of Rs.14 Lacs to the satisfaction of
Registrar General of this Court within eight weeks from
today.
10. Though while considering an application under
Rule 4 of Order XXXVII the Court can and should normally
consider the application for leave to contest on merits since
there is no such prayer in this application and another
application has already been filed for this purpose, and
there is no request to take up that application along with
this application, I do not propose to consider application for
leave to contest on merit, at this stage
The applications stand disposed of.
CS(OS) 622/2007 & IA 11446/2007
Subject to payment of cost and furnishing of bank
guarantee within eight weeks, to the satisfaction of the
Registrar General of this Court, list on 7th July 2011 for
disposal of IA 11446/2007.
(V.K. JAIN)
JUDGE
FEBRUARY 03, 2011
Ag
