Shri Daya Chand Through Lr Mukesh ... vs The Assessing Officer ...
2014 Latest Caselaw 6971 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 C.R.P. No.105 /2014
%                                         18th December, 2014
SHRI DAYA CHAND THROUGH LR MUKESH KUMAR ......Petitioner
                  Through:    Mr. Rajeev Tyagi, Advocate.

                   VERSUS
THE ASSESSING OFFICER (ENFORCEMENT) BSES RAJDHANI POWER
LIMITED                                       ...... Respondent
                   Through:  Mr. Deepak Pathak, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.11791/2014 (exemption)
1.           Exemption allowed subject to just exceptions.
             C.M. stands disposed of.
+ C.R.P. No.105/2014 and                 C.M.   Nos.11790/2014(stay)       and
11792/2014(condonation of delay)
2.           This petition under Section 115 of the Code of Civil Procedure,

1908 (CPC) is filed by the petitioner/plaintiff impugning the order of the

trial court dated 19.3.2014 by which the trial court has allowed the

applications filed by the respondent/defendant under Order IX Rule 13 of

CPC and Section 5 of the Limitation Act, 1963 and consequently set aside

the ex parte order dated 19.4.2012 proceeding the respondent/defendant ex

parte and also the ex parte judgment and decree dated 11.10.2012.


C.R.P. No.105/2014                                           Page 1 of 4
 3.           The case of the respondent/defendant in the application under

Order IX Rule 13 CPC was that it had engaged a counsel, and it was relying

upon the said counsel, but the said counsel for the respondent/defendant in

the trial court for no apparent reasons stopped appearing and therefore the

fact that the respondent/defendant was proceeded ex parte was not to the

knowledge of the respondent/defendant. The respondent/defendant came to

know about it being proceeded ex parte when the legal retainer came to the

court in another matter of the defendant company, and when he came to

know about the respondent/defendant being proceeded ex parte in the case,

whereafter, the new counsel was engaged who inspected the file and

thereafter the subject applications under Order IX Rule 13 CPC and Section

5 of the Limitation Act, 1963 were filed.


4.           At the outset, it is required to be noted that the

petitioner/plaintiff did not choose to file any replies to the applications of the

respondent/defendant under Order IX Rule 13 CPC and Section 5 of the

Limitation Act, 1963. Once, no replies are filed, the contents of the

applications have to be taken as deemed to be admitted as correct in view of

Order VIII Rule 10 read with Section 141 CPC. Therefore, the petitioner

having not disputed that the respondent/defendant had engaged the counsel

who committed negligence by not appearing and not informing the

C.R.P. No.105/2014                                                Page 2 of 4
 respondent/defendant of his non-appearance in the suit, in my opinion, there

is sufficient reason for the ex parte order dated 19.4.2012 and the ex parte

judgment and decree dated 11.10.2012 to be set aside. After all, a litigant

cannot be blamed for the fault of his Advocate.


5.            Powers under Section 115 CPC are exercised only if the

impugned order causes clear cut and grave injustice by the Court below

acting in excess of jurisdiction or illegally exercising jurisdiction.   Orders

by which an application under Order IX Rule 13 CPC is allowed and the

case is hence to be decided on merits, and that too when the written

statement of the respondent/defendant is already on record, are not such

orders which should be interfered with by this Court.


6.            Learned counsel for the petitioner relied upon the following

judgments:-


(i)    Balwant Singh (dead) Vs. Jagdish Singh & Ors. AIR 2010 SC 3043
       (on the aspect of 'sufficient cause').
(ii)   Dharshan Lal Dhuper Vs. Smt. Motia Rani & Ors. 110 (2004) DLT

516 (on the aspect that the mistake of counsel must be established).




C.R.P. No.105/2014                                              Page 3 of 4
 (iii)   Pradip Kumar Chakravarty (Dr.) Vs. Satish Miglani 164 (2009)

DLT 392 (on the aspect that when there is mistake of counsel such reasons/

facts must be shown).

7.           None of the judgments relied upon by the petitioner/plaintiff

have any application to the facts of the present case inasmuch as the very

fact that the petitioner/plaintiff chose not to file any replies to the

applications under Order IX Rule 13 CPC and Section 5 of the Limitation

Act, 1963, and hence the contents of which are deemed to be admitted,

therefore, there does not arise any issue of the respondent/defendant having

to prove the case of negligence of the counsel which stands admitted on

account of non-filing of the replies. Also, what is sufficient cause is now

well elaborated in a catena of judgments of the Supreme Court, and what is

sufficient cause depends on facts of each case and since in the present case

no replies have been filed to the applications under Order IX Rule 13 CPC

and Section 5 of the Limitation Act, 1963 and contents of which are deemed

to be admitted, clearly there is sufficient cause.


8.           Dismissed.



DECEMBER 18, 2014                                    VALMIKI J. MEHTA, J.

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