Raj Kumar Maheshwai vs Jyoti Gupta & Ors.
2011 Latest Caselaw 5191 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 1238/2007

%                              Order delivered on: 21.10.2011

       RAJ KUMAR MAHESHWAI                              ..... Plaintiff
                     Through         Mr. Subrat Birla, Advocate

                   versus


       JYOTI GUPTA & ORS.                        ..... Defendant
                       Through       Defendant No.1 in person



       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

           1. Whether the Reporters of local papers may be allowed to see
              the judgment?                           Yes
           2. To be referred to Reporter or not?      Yes
           3. Whether the judgment should be reported in the Digest? Yes

G.S.SISTANI, J. (ORAL)

I.A. No. 6328/2009 ( u/o 9 Rule 13 CPC for setting aside Ex. Parte decree)

1. This is an application filed by the defendant no.1 under Order 9

Rule 13 read with Section 151 of the Code of Civil Procedure

seeking setting aside of the judgment and decree dated 11 th March,

2008 and the order by which she was proceeded ex parte.

2. It is submitted by defendant No.1 that she is being represented by

a lawyer appointed by the Delhi High Court Legal Society, who was

present at the first call while the counsel for the plaintiff was not

present. At the second call, the counsel for defendant No.1 is not

present. Counsel for the plaintiff has submitted that the application

is being adjourned from time to time as the counsel for defendant

no.1 has been seeking adjournments to delay the matter.

Defendant No.1 is present in person. The defendant No.1 submits

that she was prevented by sufficient cause for not appearing in this

Court and for not filing the written statement, as she was in judicial

custody. She has drawn the attention of the Court to the order

dated 20th December, 2007 passed on an application filed by the

plaintiff seeking to serve summons on her through Superintendent,

Tihar Jail No.6. In the said application filed by the plaintiff it was

stated that the defendant No.1 is lodged in the Jail pursuant to FIR

No. 755 dated 30th December, 2004 under Sections 406/409/420

and 422 IPC PS Model Town. The aforesaid application was allowed.

On 11th January, 2008, the defendant No. 1 was present in court in

custody and was granted time to file written statement within four

weeks. As no written statement was filed and on account of non-

appearance, the defendant no.1 was proceeded ex parte. No

written statement was filed by defendant Nos. 2 and 3 and they

were also proceeded ex parte and subsequently on 25 th July, 2008,

an ex parte decree was passed.

3. Defendant No.1 submits that she is a widow and she lost her

husband very early in life when her only son was studying in 5th

Class. It is submitted by her that she was made to sign a cheque to

guarantee a transaction which was entered into between plaintiff

and defendant Nos. 2 and 3, against whom no action has been

initiated, but taking into consideration that she is a soft target,

defenceless and a widow looking after her old aged and infirm

mother-in-law along with her minor son, she was arrested and sent

to imprisonment. It is submitted that during the relevant period,

she remained in judicial custody which prevented her from

engaging a counsel and filing written statement. It is further

submitted that even delay in filing the present application is on

account of the fact that she was unable to engage services of any

counsel and even otherwise, she was extremely pre-occupied,

mentally disturbed and harassed and was taking all steps to obtain

bail, to enable her to look after her family. She does not dispute the

fact that she has been making number of applications for bail

during this period. It is submitted by her that on account of lack of

legal facilities and proper legal advice, she should not be made to

suffer twice for an offence which she never committed and to make

payment of an amount of which she was never received. She

submits that no prejudice will be caused to the plaintiff if the

matter is disposed of on merits and on the contrary she will suffer

irreparable loss and injury in case the ex parte decree is not set

aside. She further submits that the grounds raises in the present

application under order 9 Rule 13 may also be read for condonation

of delay under Section 5 of the Limitation Act as the ground of

delay are identical for non-appearing in the Court and not filing the

written statement.

4. The application is vehemently opposed by the learned counsel for

the plaintiff who submits that the defendant No.1 has cheated his

client. It is further submitted that defendant no.1 has been actively

pursuing her remedies even while she was in judicial custody. He

has drawn the attention of the Court to various applications filed by

her when she was in judicial custody for securing her bail. He

further submits that being in judicial custody cannot be treated as

sufficient ground for not appearing in Court. He relied upon

Collector of Balasore vs. Ashutosh Roy, AIR 1963 Orissa

102 (V 50 C 37), particularly, paras 3, 4 and 5.

5. I have heard the defendant No.1 who appears in person and the

counsel for the plaintiff and also carefully perused the application

under Order 9 Rule 13 CPC. It is contended by defendant no.1, who

appears in person, that she was prevented by sufficient cause for

not appearing in court and also not filing the written statement, on

account of the fact that she was in judicial custody. While

considering the application under Order 9 Rule 7 CPC the court

must be satisfied that the applicant was prevented from appearing

in court on the date fixed for good cause. The court must also

consider as to whether the applicant has been able to make out

exceptional and special circumstances for non-appearance and

non-filing of the written statement. In the present case the ground

urged before this court is that the applicant was in judicial custody

during the relevant period. The factum of the defendant No.1

being in judicial custody during the relevant period is not disputed

by the learned counsel for the plaintiff. What has been argued by

him is during the period from June, 2004 up to 6th July, 2009 when

the defendant no.1 was in jail, she had made various applications

for being released on bail including on 6th February, 2006, 27th April,

2006, 11th May, 2006, 20th September, 2007, 25th December,

2007, 22nd February, 2008, 7th April, 2008, 17th July, 2008, 21st

January, 2009, 28th March, 2009 and 24th May, 2009, which would

show that she had the benefit of legal advice and filing of these

applications is also not in dispute. The short question that arises for

consideration is whether being in jail is to be treated as sufficient

cause/ good cause for non-appearance and for not filing the written

statement, as per the provisions of Order 9 Rule 13. The case of

Collector of Balasore (Supra) relied upon by learned counsel for

the plaintiff was a case where the accused was present in Court at

the time when the decree was passed and he did not file any

application either for setting aside the decree or the appeal. What

has been held in the case of Collector of Balasore (Supra) is

that it is not the law that the period of imprisonment must always

be excluded. The judgment sought to be relied upon by the

counsel for the plaintiff is not applicable and can be of no help to

him. The imprisonment of a party may not constitute sufficient

cause for excusing delay in all circumstances. There can be no

quarrel to this proposition. What is to be seen is whether a person

in jail had proper legal facilities or was the person prevented from

defending himself or was in a position to defend himself from jail.

This would again depend on the facts of each case. An

economically well of person with large resources may able to

engage a battery of lawyers to defend him while in jail and in such

a case being in jail may not constitute sufficient cause for non-

appearance. The present case does not fall in this category.

Defendant no.1 is a widow, looking after her old in-laws and a

minor son. Defendant no.1 is a person belonging to such a

background that her family members did not pursue the litigation

in her absence. In short, the overall circumstances of a person are

to be taken into consideration before arriving at a conclusion that

being in jail by itself is a sufficient cause for not filing written

statement or for appearance. In case at hand, as already stated

the applicant is a widow. She is looking after her old aged infirm

mother-in-law. Her son was minor when she was in jail and he was

studying. According to the applicant she is a teacher and has

limited source of livelihood. In my view if such circumstances can

be termed as sufficient cause for a person not having sufficient

means to defend herself in jail, there cannot be any worse case

than this. Under these circumstances, I am satisfied that there was

good cause/ sufficient cause. Merely filing number of bail

applications cannot be a ground to dismiss the present application.

In case when life and liberty of a person is affected such a person

would take all steps which are available firstly to get herself

released on bail rather than to take steps to defend a civil matter.

Filing of series of applications which have been referred by the

counsel for the plaintiff in the reply would show the desperate

condition of defendant No.1 who was making repeated bail

applications for her to be released and admittedly she remained in

jail for more than three to four years. Having regard to the facts of

the present case, I am satisfied that the defendant no.1 was

prevented from sufficient cause from appearing in court and for not

filing the written statement. Accordingly, the application is

allowed. Consequently order dated 27.03.2008 proceeding

defendant no.1 ex parte is recalled and the judgment/ decree

dated 25.07.2008 is set aside.

CS(OS) 1238/2007

6. Let written statement be filed by the defendant within 30 days from

today. Replication within 30 days thereafter. The parties will file

documents within the same period.

7. List before the Joint Registrar, on 18th January, 2012 for

admission/denial of the documents.

                                                                       G.S.SISTANI, J
OCTOBER            21, 2011
'raj'