Vipin Aggarwal vs Mohinder Singh
2013 Latest Caselaw 1925 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+               F.A.O. No.197 of 2013 & C.M. Nos.6773-6776/2013

                                        Decided on : 29th April, 2013

VIPIN AGGARWAL                                      ...... Appellant
            Through:              Mr. H.K. Shekhar, Advocate.

                         Versus

MOHINDER SINGH                                       ......      Respondent

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

C.M. No.6775/2013 (for exemption)

Exemption allowed, subject to the deficiency being rectified.

The application stands disposed of.

C.M. Nos.6774/2013 & 6776/2013

These are the applications seeking condonation of delay in filing

and re-filing the appeal.

I have heard the learned counsel for the appellant.

For the reasons stated in the applications, the same are allowed and

delay in filing and re-filing the appeal is condoned as 'sufficient cause'

has been shown.

The applications stand disposed of.

F.A.O. No.197 of 2013 & C.M. No.6773/2013 (for stay)

1. This is an appeal filed by the appellant under Order XLIII Rule 1

(d) read with Sections 104 and 151 CPC against the order dated

26.5.2012 passed in M. No.62/2011 by virtue of which the learned

Additional District Judge had dismissed the application of the appellant

under Order IX Rule 13 read with Section 151 CPC for setting aside the

ex parte decree dated 21.5.2011.

2. Briefly stated the facts of the case are that the respondent/plaintiff

filed a suit for specific performance, possession and permanent injunction

against the defendant/appellant in respect of property No.907, Second

Floor, Gali Inderwali, Kucha Pati Ram, Bazar Sita Ram, Delhi. The

plaintiff/respondent had setup the case that the defendant/appellant had

agreed to sell the said property and for that purpose, they entered into an

Agreement-cum-Bayana receipt dated 10.8.2008 and plaintiff/respondent

also paid a sum of `2 lacs as earnest money and `5 lacs as part payment

to the appellant. But the defendant/appellant with an ulterior motive, did

not abide by the agreement. The defendant/appellant was served and he

filed his written statement. However, thereafter, the defendant/appellant

absented himself as a consequence of which he was proceeded ex parte

on 20.9.2010. After recording of the ex parte evidence of the

plaintiff/respondent, the suit was decreed vide judgment dated 21.5.2011.

The defendant/appellant filed an application for setting aside the ex parte

decree and took a plea that the absence of the appellant was on account of

the reason that the counsel had asked the appellant not to appear in the

court on account of the case being of a civil nature and he had assured

that the matter would be attended to. So far as the counsel is concerned,

it was stated that he had kept the case file on a wooden rack and one day

all of a sudden, the wooden rack fell down and the files kept over it

scattered which resulted in misplacement of the file in question. This is

on account of the fact that after picking up the files which had fallen from

the wooden rack; the same were placed in the chamber of one Mr. A.C.

Tiwari, Advocate, Chamber No.B-107, Tis Hazari Courts, Delhi.

Because of this incident, the file got mixed up and as the date of the case

was not entered into the diary, therefore, the matter could not be attended

by the counsel. It is further stated by the appellant that personally also he

was not keeping good health and was suffering from various ailments due

to tension and stressful life since February, 2011. He had also filed some

documents pertaining to his treatment in Lok Nayak Hospital. On the

basis of these facts, it was alleged that it was only on 1.9.2011 when the

appellant visited the office of his counsel and enquired about the outcome

of his case which led to the discovery of the fact that the file had been

misplaced. Thereafter, the counsel searched the files kept in the chamber

of Mr. A.C. Tiwari, Advocate from where, the same was located.

Accordingly, an application under Order IX Rule 13 CPC for setting

aside the ex parte decree along with an application seeking condonation

of delay was filed.

3. The plaintiff/respondent filed reply to the said application

contesting the claim of the defendant/appellant. It was stated that the

application for setting aside ex parte decree was not only barred by time

but even the explanation given by the defendant/appellant was totally

uninspiring and unacceptable and did not constitute 'sufficient cause'. It

was stated that this was actuated with a mala fide intention to delay the

disposal of the case.

4. The learned trial court, after hearing the arguments, dismissed the

application by observing that even if the plea of the file having been

mixed up with other files of the counsel is accepted to be correct, even

then the case should not have been dismissed for default for the reason

that the case ought to have been entered into the diary of the counsel.

5. I have heard the learned counsel for the appellant and have gone

through the impugned order. I find myself in agreement with the

reasoning given by the trial court that the plea which has been taken by

the appellant is not only totally uninspiring but is also a cooked up one.

This is on account of the fact that even if the appellant is given the benefit

of doubt so far as the mixing up of the file is concerned, that could not

have been a ground for non-appearance of the appellant or his counsel in

the trial court. This is because of the fact that when a date is given in a

case invariably it is entered into the diary of the counsel. It is unlikely

that the counsel without entering the date in his diary, would keep the file

in his chamber and would not have known the date and even if it is

assumed that the date was not entered in the diary, the case being of a

recent origin should have at least arisen his curiosity or the curiosity of

his clerk to find out as to what happened to the case of the appellant.

6. In addition to this, the plea which has been taken by the appellant

that his counsel mixed up the file with other files of his chamber and then

shifted the files in question to the chamber of Mr. A.C. Tiwari, Advocate,

is not supported by the affidavit of the counsel or the affidavit of Mr.

A.C. Tiwari, Advocate in whose chamber the file was traced. Therefore,

in my opinion, this plea which has been taken by the appellant is a totally

false plea and the trial court has rightly dismissed the same.

7. No doubt, the Supreme Court has in number of cases construed the

concept of 'sufficient cause' liberally but while construing the said term,

it has repeatedly been observed that what is important to be seen is not

the length of delay but the bona fides of the person [N. Balakrishnan vs.

M. Krishnamurti; AIR 1998 SC 3222].

8. In the instant case, as the suit for specific performance was filed

against the defendant/appellant, he should have been vigilant to defend

his suit. He could not conveniently take the plea of being absent at the

instance of his counsel and live completely at his mercy and not try to

find out the outcome of the case for as long as 8-10 months. This conduct

of the appellant also seems to be slightly unreasonable. In totality of

circumstances, I feel that the explanation which has been given by the

appellant is totally unconvincing and, therefore, the order of the trial

court does not deserve to be interfered with.

9. Accordingly, the appeal is dismissed.

V.K. SHALI, J.

APRIL 29, 2013 'AA'