Rakesh Kumar Gupta vs M/S Khushi Ram Bihari Lal Ltd. & ...
2013 Latest Caselaw 1169 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+     I.A. No.20367/2011 (by the plaintiff u/O IX R 9 CPC) and
     I.A. No. 20368/2011 (by the plaintiff u/S 5 of Limitation Act)
                        in CS(OS) 1386/2009

                                         Date of Decision: 8th March, 2013

IN THE MATTER OF
RAKESH KUMAR GUPTA                                          ..... Plaintiff
                       Through: Mr. G.L. Rawal, Sr. Advocate with
                       Mr. Kuljeet Rawal, Advocate

                       versus


M/S KHUSHI RAM BIHARI LAL LTD. & ORS.               .... Defendants
                   Through: Mr. Rajiv Nanda, Advocate with
                   Ms. Shawana Bari, Advocate



CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The plaintiff has filed I.A. No.20367/2011 under Order IX Rule 9

CPC praying inter alia for setting aside the order dated 16.12.2010,

whereunder the suit was dismissed in default. Alongwith the present

application, the plaintiff has filed I.A. No.20368/2011 for condonation of

delay of 357 days in filing an application under Order IX Rule 9 CPC.

2. Learned Senior Advocate appearing for the plaintiff states that in

August 2009, the plaintiff had instituted the present suit for recovery of

moneys against the defendants through his previous counsel, whereafter

summons were issued in the suit and the written statement was filed. As

the plaintiff did not file the replication, the right to file the same was

closed vide order dated 27.07.2010. In the meantime, the defendants

filed an application under Order VII Rule 11 CPC for dismissal of the suit

on the ground that it is not maintainable. No reply was filed by the

plaintiff to the said application and his right to file the same was closed.

Subsequently, the plaintiff had filed an application under Order VI Rule 17

CPC for seeking permission to amend the plaint, registered as I.A.

No.12577/2010, whereon notice was issued on 09.12.2010. Till the said

date, the plaintiff was being duly represented through counsel. However,

on 16.12.2010, when the suit and the pending interim applications were

placed before the Court, none had appeared for the plaintiff. As a result,

the suit was dismissed in default alongwith the pending application filed

by the plaintiff.

3. The explanation offered by the counsel for the plaintiff for

condonation of delay is that the plaintiff had engaged a counsel for

conducting the suit, with whom he was telephonically in touch and he

would also visit his chambers in the Supreme Court Complex, as and

when called upon to do so. Subsequently, when the plaintiff had

attempted to contact the counsel to find out the status of his case, he

claims that his counsel started to evade him and did not inform him of the

status of the suit. It was only in November, 2011 that the plaintiff

undertook an inspection of the court records and discovered that the suit

had been dismissed on 16.12.2010 and immediately upon becoming

aware of the said position, the plaintiff had dispatched a letter dated

25.11.2011 to his counsel through registered post. However, his counsel

did not respond to the said letter. Thereafter, the plaintiff approached the

present counsel to take necessary steps for restoration of the suit and the

present applications were then filed for seeking condonation of delay of

357 days in filing the restoration application and for setting aside the

order dated 16.12.2010. Counsel for the plaintiff also points out that the

plaintiff is a senior citizen and has been keeping indifferent health as he is

suffering from bronchitis and being a permanent resident of Faridabad, he

was not in a position to attend the hearings in Court on every date, for

which he had chose to rely on his counsel.

4. Per contra, counsel for the defendants opposes the present

applications on the ground that the explanation offered by the plaintiff for

condonation of delay and restoration of the suit is not bonafide. He

submits that even if it is assumed that the plaintiff was following up the

matter with his counsel for a period of time, he has no plausible

explanation to offer for not contacting his advocate for almost one year

prior to the dismissal of the suit on 16.12.2010 and that lack of diligence

on his part is writ large on the record. It is further stated by the counsel

for the defendants that the dismissal of the present suit due to the default

on the part of the plaintiff has resulted in a valuable right accruing in

favour of the defendants and failure on the part of the plaintiff to furnish

a reasonable justification for explaining a prolonged delay of 357 days in

filing the restoration application ought to be a sufficient reason to dismiss

the present applications. Lastly, it is submitted by the counsel for the

defendants that the fact that the plaintiff is suffering from bronchitis can

hardly be treated as a ground for condonation of such a prolonged delay,

as the said ailment is not of such a magnitude as to have kept him home

bound.

5. The Court has heard the counsels for the parties and carefully

considered their respective submissions.

6. As has been noted above, the plaintiff was being duly represented

through a counsel till 09.12.2010, when an application filed on his behalf

under Order VI Rule 17 CPC, for seeking some amendments in the plaint

was listed before the Court. Notice was issued on the said application,

returnable on 16.12.2010. It is only on 16.12.2010 that none had

appeared on behalf of the plaintiff, which had resulted in the suit and the

application being dismissed in default. It is undoubtedly true that once a

client has engaged a counsel to conduct a matter in Court on his behalf,

he is not expected to visit the Court on every date of hearing and pursue

the case personally.

7. Ordinarily, clients rely on their counsel for purposes of

prosecuting/defending their case, unless and until circumstances require

their personal presence in Court. It can also not be stated that it is a

case of a nature where the plaintiff would stand to gain if the suit is

dismissed as it is a suit for recovery that has been filed by him against

the defendant and the same has got delayed due to the aforesaid

sequence of events. The explanation offered by the counsel for the

plaintiff that the plaintiff had behaved like a common prudent litigant by

contacting his counsel from time to time and it was only in the latter part

of the year 2011 that he came to know that his suit had been dismissed

on account of the absence of his counsel on 16.12.2010, cannot be

treated as such an unreasonable or implausible explanation as to reject

the same outright. Ordinarily, judicial discretion of the Court ought to be

tilted in favour of deciding cases on merits rather than by non-suiting

parties on technical grounds. However, the Court is inclined to agree with

the submissions made by the counsel for the defendants that the plaintiff

has not been as diligent as he ought to have been in pursuing his suit and

a whole year's delay in filing the present applications ought to have been

substantiated by filing some documents to justify his indifferent health.

8. For the aforesaid reasons, while allowing the present applications

filed by the plaintiffs and setting aside the order dated 16.12.2010,

resultantly restoring the suit and the pending application to their original

position and further, condoning the delay in filing the restoration

application, it is deemed appropriate to impose costs of `10,000/- on the

plaintiff. The aforesaid costs shall be paid to the defendants through

counsel within two weeks from today. It is made clear that failure on the

part of the plaintiff to pay costs within the timeline stipulated above,

would result in the revival of the order dated 16.12.2010.

9. The applications are disposed of.

                                                             (HIMA KOHLI)
MARCH 8, 2013                                                    JUDGE
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