Delhi High Court
Smt. Madhurika Sharma & Ors. vs Smt. Bhagwati Devi Sharma & Anr. on 19 October, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 19.10.2011
+ CM(M) No. 885/2011
SMT. MADHURIKA SHARMA & ORS. .......PETITIONER
Through: Mr. Man Mohan Swaroop and
Ms. Sanyogita Swaroop,
Advocates.
Versus
SMT. BHAGWATI DEVI SHARMA & ANR. .......RESPONDENT
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM No. 14285/2011 (exemption) in CM (M) No. 885/2011
Exemption allowed subject to just exceptions.
CM (M) No. 885/2011
The order impugned before this court is the order dated
29.03.2011 had dismissed the application filed of the defendants
under Order IX Rule VII of the Code of Civil Procedure
(hereinafter referred to as 'the Code'). This application had been
filed by the defendant Nos. 7, 8, 10 and 11; by way of this
application defendant Nos. 7, 8, 10 and 11 had sought setting
aside ex parte order dated 05.07.1999. This application had been
filed after about ten years. Contention in this application is that
the applicants/petitioners were housewives and defendant Nos. 7
and 10 are resident of Rajasthan, defendant No. 10 is a resident of
Rohini, Delhi and defendant No. 11 is a resident of UP; The
applicants had engaged Mr. T.C. Gupta for defending their suit.
They were not aware that the suit was not being prosecuted
diligently; in fact, an application had been filed by their advocate
Sh. Alok Kumar to set aside the ex parte order dated 19.02.2008;
this was in mistake that the ex parte order was of 19.02.2008
whereas the ex parte order had been passed actually on
05.07.1999. It was only after the petitioners have obtained
certified copies of the subsequent orders and engaged another
counsel Sh. Man Mohan Swaroop, these facts came to light;
thereafter, the present application has been filed.
The impugned order had noted that there was a gap of
about almost ten years in preferring this application for setting
aside ex parte order which was passed on 05.07.1999. The only
defence of the petitioners is that the petitioners are housewives
and they were not aware of the proceedings; even this is
presumed to be a correct fact, it does not take away the duty
which is cast upon a litigant to prosecute his case diligently.
Record shows that as per the statement of the petitioners, they
had engaged three counsel but what did the petitioners do to
follow up their case remained unexplainable and unanswered. A
litigant after engaging a counsel is also supposed to follow up his
case with his lawyer; he cannot be abdicated from his
responsibility merely because he has engaged an advocate. The
impugned order had correctly noted that there was no justifiable
reason for this long delay of ten years; the application under
Order IX Rule VII of the Code had accordingly been dismissed.
Relevant would it be to note that on an earlier date i.e.
18.09.2008, an application under Order IX Rule VII of the Code
had been filed which was dismissed on 12.08.2010; this
application had sought to set aside ex parte order dated
19.02.2008 whereas the record shows that the ex parte order had
been passed on 05.07.1999. Facts have been noted by the trial
court in the correct perspective.
Impugned order suffers from no infirmity; petition is
dismissed.
INDERMEET KAUR, J.
OCTOBER 19, 2011/rb
