Ramesh Mann vs Jitender Kumar & Ors
2011 Latest Caselaw 367 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment delivered on: 21ST January, 2011

+       CM(M) 360/2010 & CM No. 4849/2010


RAMESH MANN                                        ..... Petitioner
                           Through : Ms. Sonia Arora, Adv.

                      versus

JITENDER KUMAR & ORS                  ..... Respondents
                   Through : Mr. Saleem Ahmed, ASC and
                             Mr. Aneesh T.S., Adv. for R-2
                             to 4 with ASI Jai Prakash, P.S.
                             Alipur

CORAM:-
HON'BLE MS. JUSTICE VEENA BIRBAL

1.      Whether Reporters of local papers may be allowed
        to see the judgment ?

2.      To be referred to the Reporter or not?

3.      Whether the judgment should be reported in Digest?

VEENA BIRBAL, J.

1. By way of this petition under Article 227 of the

Constitution of India, petitioner has challenged the impugned

order dated 26.11.2009 by which application of respondents

i.e. defendants before the trial court under Order 9 Rule 7 CPC

read with Section 151 CPC along with an application under

Section 5 of the Limitation Act have been allowed and the

order dated 29.02.2008 whereby respondents/defendants

were proceeded ex parte has been set aside subject to cost of

` 3,000/- each.

2. Petitioner (i.e. plaintiff before the trial court) has filed a

suit for damages to the tune of ` 4 lakhs against

respondents/defendants for the loss and damages alleged to

have been suffered by the petitioner/plaintiff on account of

defamation, mental agony, loss of work and reputation along

with interest @ 24% per annum. The suit was filed in the year

2004. It is stated that pleadings in the suit are complete. On

29.02.2008, when the matter was listed for evidence of the

petitioner/plaintiff, the respondents/defendants did not appear

and as such were proceeded ex parte. Thereafter also for few

dates of hearing respondents did not appear. Ultimately on

09.09.2008, the respondents no. 1 to 3 appeared and moved

an application under Order 9 Rule 7 CPC read with Section 151

CPC along with an application under Section 5 of the Limitation

Act for condonation of delay. Another application under

Section 11 and 12 of the Contempt of Courts Act was also

moved by respondents/defendants. The applications for

setting aside of order as well as condonation of delay were

allowed by the learned trial court vide impugned order dated

26.11.2009.

Aggrieved with the same, the present petition is filed.

Vide same order, application under Section 11 and 12 of

Contempt of Courts Act of respondents/defendants is

dismissed. However, the respondents/defendants have not

challenged dismissal of their application.

3. Counsel for petitioner has submitted that the

respondents were proceeded ex parte on 29.02.2008 whereas

application for setting aside the said order was moved on

08.09.2008. It is submitted that there was sufficient delay in

moving the application which has not been properly explained.

Further, no sufficient cause is shown in setting aside of ex

parte order. It is contended that it is a case of total inaction on

the part of respondents/defendants. They want to delay the

matter for ulterior motives, as such impugned order is liable to

be set aside.

4. On the other hand, the stand of the respondents is that

they have been diligent in pursuing the matter. It is submitted

that the petitioner/plaintiff had earlier challenged the order

dated 01.02.2007 by which the respondents/defendants were

proceeded ex parte by filing a CM(M) No. 309/2007 before this

Court which was dismissed on 01.03.2007. However, the

petitioner/plaintiff had been taking adjournments before the

learned trial court from 07.02.2007 onwards on the ground

that the said CM(M) was pending in this Court. Due to said

reason, the trial court had been adjourning the case for further

proceedings awaiting the outcome of said petition. It is further

stated that respondents are police officials and are in the

Government service and had entrusted the matter to their

counsel with the bona fide belief that their counsel must be

attending the matter. On 03.09.2008, the counsel for

petitioner informed them that they had been proceeded ex

parte. Thereafter, another counsel was engaged who had

inspected the file and moved the application for setting aside

of ex parte order on 08.09.2008 without any loss of time. It is

stated that there is no delay on the part of

respondents/defendants in moving the application. Present is

a case of bona fide mistake. Learned counsel further submits

that considering the sufficient cause stated for non-

appearance in the application and considering the explanation

given in the application for condonation of delay, the learned

trial court has allowed both the applications, and this court will

not interfere in the discretionary order of the learned trial

court in exercise of its jurisdiction under Article 227 of the

Constitution of India.

5. I have considered the submissions made and perused the

record.

6. The pleadings are already complete and the trial court

has allowed the application of the respondents vide impugned

order dated 26.11.2009. Issues have also been framed in the

matter.

7. Perusal of record shows that the respondents/defendants

were earlier proceeded ex parte by the order dated

01.02.2007 of learned trial court. The same was earlier

challenged by the petitioner/plaintiff before this court vide

CM(M) No. 309/2007 and the said petition was dismissed even

without issuing notice to the respondents on 01.03.2007. The

record shows that the petitioner/plaintiff did not inform the

learned trial court correctly and rather had taken

adjournments on the ground that the matter was pending

before this Court. On that ground the case was being

adjourned from time to time before the learned trial court for

further proceedings. Though the CM(M) was dismissed on

01.03.2007 but the learned trial court has been informed only

on 29.02.2008. Prior to this, there has been appearance on

behalf of respondents/defendants and the case was being

adjourned from time to time for further proceedings. On

29.02.2008, the respondents/defendants did not appear and

were proceeded ex parte. Even thereafter, the matter had

been adjourned at the request of petitioner/plaintiff on

31.03.2008, 21.04.2008 and 29.05.2008. Again on

14.07.2008, the counsel for petitioner/plaintiff informed the

court that though the affidavit of witnesses had been placed

on record but the same had not been tendered in evidence

and date was taken for producing the said witnesses. On

01.08.2008, the petitioner had produced the aforesaid

witnesses and tendered their respective affidavits. On

09.09.2008, the aforesaid applications have been moved.

Learned trial Judge considering the seriousness of the

allegations in the suit against the respondents/defendants and

also considering the conduct of the petitioner/plaintiff in not

informing the court in time about the disposal of earlier CM(M)

for about one year and thereafter not proceeding with the

matter and also considering the reasoning given and after

being satisfied that delay had been properly explained and

that there was sufficient cause for non-appearance had

allowed the application.

8. Having considered the matter in its entirety, I am of the

view that the trial court was justified while exercising judicial

discretion in favour of respondents/defendants and setting

aside the order dated 29.02.2008 by which they were

proceeded ex parte. The petitioner/plaintiff has also been

suitably compensated by the learned trial court by imposing

cost. There is no perversity in the order. There is nothing on

record to show that respondents/defendants want to delay the

matter for ulterior motives as is alleged. Rather, the record

shows that petitioner/plaintiff himself has caused the delay in

the matter. No case is made out for exercise of power of this

court under Article 227 of the Constitution of India.

9. In Mahendra Rathour v. Onkar Singh; AIR 2002 SC 505, it

has been held that justice oriented approach has to be

adopted by courts while dealing with such matters.

10. I have gone through the judgments relied upon by the

counsel for petitioner/plaintiff. The same have no applicability

to the facts and circumstances of the present case.

11. The petition stands dismissed.

12. There are already directions by the earlier order of this

court for expeditious hearing of the matter. No further

directions are required in this regard. The parties are directed

to cooperate with the learned trial court in the expeditious

disposal of the matter.

13. Trial court record be sent back with a copy of the

judgment. Parties to appear before the learned trial court on

14.2.2011.

VEENA BIRBAL, J st JANUARY 21 , 2011 kks