Bata India Limited vs Sh. Ashwini Kumar Sareen
2012 Latest Caselaw 3945 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM(M) 737/2012 & CM 11054-11055/2012

                                           Date of Decision: 06.07.2012

BATA INDIA LIMITED                                      ...... Petitioners
                 Through:             Mr. Sushant Kumar, Advocate

                                 Versus

SH. ASHWINI KUMAR SAREEN                            ...... Respondent

                         Through:

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. This petition under Article 227 of the Constitution of India assails order dated 19.10.2012 of the learned ADJ in Civil Suit No. CS 388/2009.

2. The petitioner herein had filed an application Under Order 9 Rule 7 CPC read with Section 151 CPC for setting aside order dated 24.10.2011 and11.01.2012 passed against it by the ADJ. Vide order dated 24.10.2011, the right of the petitioner as defendant to cross examine the witness (PW-1) was closed and vide order dated 11th January 2012 the petitioner was proceeded ex-parte by the learned ADJ.

3. The application Under Order 9 Rule 7 CPC was filed by the petitioner on 7th March 2012. It was this application which came to be dismissed by the learned ADJ vide the impugned order.

4. Learned counsel appearing for the respondent accepted notice. With the consent of the parties' counsel I have heard the matter finally.

5. The pleas which have been taken in the present petition are similar to what were taken before the Court of ADJ. Before proceeding to discuss those submissions, the proceedings conducted in the trial court as recorded by the learned ADJ in the impugned order may be noted. Issues in the suit were framed on 27th January, 2010. The respondent examined his witness (PW-1) on 29.11.2010 and 01.04.2011. On 01.04.2011 his cross examination was deferred on the request of the petitioner's counsel. On 24th October 2011, this witness appeared for cross examination, but none appeared for the defendant/petitioner and consequently after waiting till 1.00 pm the cross examination of this witness (PW-1) was closed. Then case was adjourned to 11th January, 2012 for defense evidence. On this date also none appeared for the petitioner up till afternoon session and consequently the matter was proceeded ex-parte and was adjourned for final arguments for 8th February, 2012. On this date Mr. V.S. Sisodia, Adv. appeared for the petitioner and filed memo of parties. The respondent/plaintiff addressed his arguments and also filed written arguments.

6. Instant application under Order 9 Rule 7 CPC was filed by the petitioner only on 7th March 2012.

7. It was submitted by learned counsel for the petitioner that the case was earlier being looked after by Mr. A.K. Aggarwal, Advocate and that on 24th October, 2011, the matter was withdrawn from him. It was submitted that the new counsel appeared in the Court on 8th February

2012 and it was at this juncture that it came to be known that adverse orders of ex-parte had been passed. It was submitted that since the respondent had also filed application for additional evidence, the petitioner would be entitled for the recalling of the impugned order. Similar submissions were made before the learned ADJ who repelled the same reasoning as under:

"11.The submissions as made in the application of defendant are not only couched in a vague language, they do not make any plausible ground. On the other hand ostensibly the averments are patently false. On 24.10.2011 there was no reason for the defendant to look for the Court presided over by my Ld.

Predecessor, Shri Anurag Sain. My Ld. Predecessor had already been transferred as the Additional District Judge-01, East District, Karkardooma Courts, w.e.f. 22.07.2011. How, where, in what manner and by whom the alleged inquiries were made has been left by the defendant to speculation and surmises. The necessary particulars are conspicuous by absence.

12.This by itself shows that the averments are palpably false and have ostensibly been pressed into service so that the application may sail

through. At the cost of repetition, the indulgence of the Court cannot be granted when there is lack of bonafides or abject falsehood writ large on the facts of the case. The instant application sails in the same boat.

13.The previous non appearance on 06.07.2011 also shows the lack of diligence on the part of defendant. There is no justification why even after appearance on 08.02.2012 by the defendant and final arguments addressed by the plaintiff on that day the defendant had no reasons to be alarmed and to be on its heels to take remedial measures. The defendant took its own leisurely time to move the instant application which was filed on 07.03.2012. There is no plausible explanation for the delay when the appearance on behalf of defendant was caused on 08.02.2012 itself and final arguments were addressed by the plaintiff and written arguments also filed. This by itself would have been an alarm bell or wake up call for the defendant. However the defendant came out of the slumber only after about a month. Time and again, the defendant has shown its

causal approach in the conduct of the case before the Court."

8. I do not see any infirmity or illegality in the impugned order. In addition to what is noted by learned ADJ it is also seen that the petitioner in fact abandoned the case after 01.04.2011 and did not attend the proceedings on 06.10.2011, 24.10.2011 and 11.01.2012. If according to the petitioner's own showing that a new counsel was engaged who appeared on 08.02.2012 and they came to know of the passing of the adverse orders, but the application under reference came to be filed a month later on 7th March 2012. This would further testify the casual and irresponsible conduct of the petitioner in conducting the case.

9. I am conscious of the fact that technicalities should not allow to come in the administration of justice, but, however, at the same time the justice to one party cannot be allowed to perpetuate injustice to other. The lame excuse or unfounded vague pleas attributing fault to the Advocate cannot be given indulgence by the Court.

10. I do not see any reasons to interfere with the impugned order in exercise of powers under Article 227 of the Constitution. Hence the petition is dismissed.

M.L. MEHTA, J.

JULY 06 , 2012 awanish