India Islamic Cultural Centre vs Deepak Kumar
2013 Latest Caselaw 3542 Del

*                    HIGH COURT OF DELHI AT NEW DELHI

+                             RSA No.156/2013

                                        Decided on : 12.08.2013

INDIA ISLAMIC CULTURAL CENTRE                         ...... Appellant

                       Through:   Mr.T.R.Kukreja, Advocate.

                         Versus
DEEPAK KUMAR                                        ...... Respondent

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

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal filed by the appellant against the

judgment dated 04.07.2013 passed by Sh.Sandeep Yadav, learned

ADJ, Saket Courts, New Delhi dismissing the appeal of the

appellant being RCA No.65/2013 and upholding the judgment and

decree dated 08.08.2012 passed by the Civil Judge decreeing the

suit for recovery of money.

2. Briefly stated, the facts of the case are that the respondent filed a

suit under Order 37 CPC for recovery of a sum of `2,41,979/-. The

learned trial court, on considering the facts of the case, issued

summons in the suit. The defendant was served. However, none

appeared on behalf of the defendant. The defendant was proceeded

ex parte vide order dated 05.03.2011. The appellant/defendant

moved an application on 16.03.2011 under Order 9 Rule 7 CPC for

setting aside the ex parte order. The said application was allowed

and the appellant/defendant was directed to file the written

statement. The written statement was filed and the issues were

framed on 18.01.2012 and the case was adjourned for recording of

evidence. At the stage of recording of evidence, the

appellant/defendant again absented on more than two dates, as a

consequence of which, the appellant/defendant was again

proceeded ex parte on 17.05.2012. It may also be pertinent to

mention here that before being proceeded ex parte even costs had

also been imposed on the appellant/defendant on 19.03.2012. The

appellant/defendant had failed to comply with the directions of the

court with regard to payment of costs. The ex parte evidence was

recorded on 17.05.2012 and the matter was adjourned to

04.07.2012 and after hearing arguments, an ex parte decree was

passed on 08.08.2012.

3. After about 10 months from the date of being proceeded ex parte,

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

parte order dated 17.05.2012. The ground for setting aside the ex

parte proceedings against the appellant/defendant was that their

counsel was negligent who kept the appellant/defendant in dark

about the progress of the case and consequently they were put in a

situation where an ex parte decree was passed against them. The

learned trial court after calling for the record, observed that the ex

parte proceedings have to be set aside within 30 days from the date

when the knowledge of having been proceeded ex parte is drawn

and curiously the appellant/defendant having put in appearance had

not mentioned in the application as to on what date they learnt that

they had been proceeded ex parte. In addition to this, the learned

trial court rejected the plea about the appellant having been kept in

dark by the counsel inasmuch as after perusal of the order sheet,

the trial court had noted that a senior officer of the

appellant/defendant had appeared on three dates in court to attend

the matter which clearly showed that they were not in dark and as a

matter of fact they were following up the court proceedings. The

application for setting aside the ex parte proceedings was

dismissed on 10.05.2013. After dismissal of the application for

setting aside the ex parte proceedings and being permitted to

participate in the proceedings, the appellant/defendant filed an

appeal against the ex parte decree dated 08.08.2012. The learned

trial court, after considering the stand of the appellant, did not

condone the delay of 310 days in filing the appeal. The application

which was filed by the appellant seeking condonation of delay in

filing the appeal was found to be sketchy and bereft of any details.

Still not being satisfied, the appellant/defendant filed the present

regular second appeal. The substantial questions of law which the

appellant/defendant has urged to be arising in the instant appeal are

as under:

"I. Whether an appeal (being a valuable right of the appellant) should be dismissed straightway, by dismissing the accompanying application seeking condonation of delay (caused on account of negligence on the part of the then counsel), in filing appeal (i.e. without even entering into the actual case/merits of the appeal.

II. Whether the legal interests of a sincere litigant should be allowed to suffer merely for the

reasons of negligence / non-appearance on the part of its counsel.

III. Whether the grounds taken by the appellant / defendant in its leave to defend (treated to be its written statement by the Hon'ble Court) should not have been taken into account by the Hon'ble Trial Court while finally deciding the suit / case before it.

IV. Whether the Hon'ble Trial Court should have overlooked the documents (being part of Court file before it) which in fact substantiate and supported the case of the appellant / defendant;

V. Whether the bona fide intentions of the appellant (i.e. the defendant before the Hon'ble trial court in depositing Fixed Deposit Receipt of `1,00,000/- in compliance of its order for stay of execution proceedings) should not have been taken into account by the Hon'ble Appellate Court.

VI. Any other question(s) with permission of the Hon'ble Court."

4. A perusal of the aforesaid five questions would show that they are

not questions of law much less substantial questions of law. These

are questions of fact, which have been adjudicated by the court

below.

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

the record. At the outset, it must be mentioned that the appellant

has not only been negligent in pursuing the matter, they have also

not been truthful and straightforward. This is one of the important

components for setting aside the ex parte proceedings or a decree

that a person must come to the court with clean hands and must

truthfully disclose the complete facts. This is on account of the

fact that the appellant/defendant has taken a plea for setting aside

the ex parte proceedings which were initiated against the appellant

on 17.05.2012 because they had failed to appear and evidence was

recorded. The ground which was set up was that they were not

informed by the counsel who was negligent. No action was shown

to have been initiated in respect of the counsel being derelict in

discharging his duties of attending the matter. This clearly shows

that the appellant's intention was not bona fide and and they were

trying to shift the blame on to the counsel. This is evident from the

fact that the learned trial court has noted after perusal of the order

sheet that on different dates, a senior officer of the

appellant/defendant was attending the matter. Therefore, it could

not be said that the appellant was ignorant about the date of hearing

or the progress of the case. Even if they are assumed to be ignorant

about the progress of the case having not received the information

from the counsel, it is essentially the responsibility of the client to

follow up the matter and if the counsel is not furnishing the

information, they could have inspected the record. But this has not

been done in the present case. Therefore, this clearly shows that

the client is negligent and he cannot rest contented by handing over

the brief to the counsel and shift the blame to him. In addition to

this, the very basis of filing the appeal is inept. At the time when

the application for setting aside the ex parte proceedings was filed

by the appellant/defendant, an ex parte decree had already been

passed.

6. The appellant/defendant instead of challenging or filing an

application under Order 9 Rule 13 CPC for setting aside the ex

parte decree has chosen to file an application under Order 9 Rule 7

CPC for setting aside the ex parte proceedings which were initiated

against them on 17.05.2012 which has been rejected by the trial

court on 10.05.2013 and curiously enough this order of rejection of

their application has not been carried in appeal by the appellant and

on the contrary an appeal is filed against the ex parte decree dated

08.08.2012, which has also been dismissed by the first appellate

court on the ground that the application for condoning the delay of

310 days in filing the appeal against the ex parte decree has not

been sufficiently explained. The application for condonation of

delay was found to be bereft of any details and consisting of just

two lines attributing the delay in filing the appeal to the negligence

of the previous counsel of the appellant/defendant. In such

circumstances, the appellant seems to be totally slack, grossly

negligent and not intending to assail the ex parte decree having

been passed against the appellant. It seems that the appellant only

wanted a seal of legitimization on the decree so as to save their

skin.

7. The aforesaid facts clearly show that the matter does not raise any

question of law much less a substantial question of law.

8. I accordingly dismiss the appeal as it does not raise any substantial

question of law which a prerequisite for entertaining the appeal.

V.K. SHALI, J.

AUGUST 12, 2013 dm