Delhi High Court
Maruti Sale Trading Co. vs Gurdial Chand Khosla Decd. Thru. ... on 26 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 148/2012
% 26th March, 2014
MARUTI SALE TRADING CO. ......Appellant
Through: Mr. S.C.Kalra and and Mr.
V.K.Mehra, Advocates.
VERSUS
GURDIAL CHAND KHOSLA DECD. THRU. LRS. ...... Respondent
Through: Mr. C.P.Saxena, Advocate
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed against the impugned judgment of the
court below dated 9.11.2011 which has dismissed the applications filed by
the appellant-plaintiff under Order 9 Rule 9 CPC and Section 5 of the
Limitation Act, 1963. By the applications, the appellant-plaintiff sought
restoration of the suit for recovery of Rs.17,50,000/- filed under Order 37
CPC, and which was dismissed in default on 30.3.2009.
2. Appellant-plaintiff filed the subject suit for recovery of money
on the ground that he had given a friendly loan to late Sh. Gurdial Chand
Khosla, and who is now represented before the court below by his widow
FAO 148/2012 Page 1 of 5
Smt. Sudhershan Khosla. Summons in the suit for appearance under Order
37 CPC were issued and the defendant filed appearance. Suit was dismissed
in default on 30.3.2009 when no one appeared for the appellant-plaintiff.
3. The case of the appellant-plaintiff is that his earlier lawyers
kept him in the dark by not informing him of the dismissal in default of the
suit, and when in June-July, 2010, counsels started avoiding him, it
transpired to him that actually the suit was dismissed in default much earlier
in March, 2009. Appellant-plaintiff claims to have been befooled/duped by
his earlier counsels and consequently appellant-plaintiff has also filed
complaint with the Bar Council of Delhi on 15.9.2010. After obtaining the
goshwara number of the disposed of suit, and which is given to the suit
record after disposal of the suit, and the necessary particulars were obtained,
thereafter the subject applications were filed for restoration of the suit.
There is therefore on account of the aforestated facts a delay of 534 days in
filing the application for restoration.
4. Learned counsel for the appellant-plaintiff argued that there is
no reason why the appellant-plaintiff would not pursue his suit especially
because the suit was for a huge amount of Rs. 17,50,000/-, and, with respect
to which, not only court fees were paid but fees of the counsel were also
FAO 148/2012 Page 2 of 5
paid. It is argued that appellant-plaintiff should not be made to suffer for the
negligence and the default of his earlier counsel against whom complaint has
already been filed with the Bar Council. It is argued that the appellant-
plaintiff was told by his earlier counsel that no personal appearance is
required in a civil suit because the case is not a criminal case and hence
appellant/plaintiff /sole proprietor did not appear in the court on every date
fixed by the court. It is therefore prayed that the court below has erred in not
restoring the suit and has illegally dismissed the applications under Order 9
Rule 9 CPC and Section 5 of the Limitation Act, 1963.
5. On behalf of the respondent, it is very vehemently argued that
the appellant-plaintiff is guilty of delay and negligence. It is argued that the
complaint to the Bar Council has already been filed only on 15.9.2010, and
that enquiries before the Bar Council reveal that adequate number of
complaints have not been filed and that it is not supported by affidavit. It is
argued that in the facts of the present case, there is no ground for allowing of
the appeal and restoration of the suit.
6. In my opinion the appeal deserves to be allowed because there
is no reason why appellant-plaintiff would be guilty of negligence or
deliberate inaction for getting a suit for recovery of a huge amount of Rs.
FAO 148/2012 Page 3 of 5
17,50,000/- dismissed in default and where not only court fees were paid but
counsel fees have also been paid. There is nothing unnatural for the
appellant-plaintiff in relying upon the assurance by its advocates that no
personal appearance is required, and which is a normal procedure in a civil
suit. It is only when the appellant-plaintiff's advocates started avoiding him
that the appellant on realizing the seriousness made detailed enquiries and
came to know of dismissal in default of the suit. The stand of the appellant-
plaintiff in my opinion is buttressed by complaint having been made against
the earlier advocates with the Bar Council of Delhi.
7. Though learned counsel for the respondent has very vehemently
argued that there is no ground for condonation of delay, I cannot agree
because in civil suit appearance on every date of a plaintiff is not required.
It is nothing unnatural for the advocates to be trusted and I do not agree that
there can be said to be negligence on behalf of the appellant-plaintiff, much
less deliberate negligence, once the suit is for recovery of a large amount
and appellant-plaintiff has incurred expenses towards court fees and lawyers
fees.
8. At this stage, one is reminded of the ratio of the judgment of the
Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy AIR
FAO 148/2012 Page 4 of 5
1998 SC 3222, and which holds that whenever there is delay some amount
of oversight or negligence is implicit, however, the same cannot prejudice a
person unless negligence is on account of want of good faith or negligence is
a criminal negligence. Also, it has been consistently held by the Supreme
Court in various judgments that a party should not suffer for the fault of his
advocate.
9. In view of the above, the appeal is allowed. The impugned
order dated 9.11.2011 is set aside. The suit of the appellant-plaintiff will
stand restored to its original number.
10. Let the parties appear before the District & Sessions Judge
(North West), Rohini, Delhi on 6th May, 2014 and District & Sessions Judge
will mark the suit for disposal to a competent court in accordance with law.
MARCH 26, 2014 VALMIKI J. MEHTA, J.
ib
