Hemant Kumar vs Om Dutt Sharma And Ors
2014 Latest Caselaw 2543 Del

*            HIGH COURT OF DELHI AT NEW DELHI

+                      CS (OS) No.804/2011

                                             Decided on: 19th May, 2014

    HEMANT KUMAR                                       ..... Plaintiff

                       Through:     Mr.Varun Nischal, Adv.

                       Versus


    OM DUTT SHARMA AND ORS                               ..... Defendant

                       Through:     Ms.Prerna, Adv.

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

    V.K. SHALI, J. (ORAL)

I

IA No.16552/2012 (u/O 9 R 13 read with Section 151 CPC) IA No.1430/2013 (u/Section 5 of the Limitation Act, 1963)

1. These two applications have been filed by the defendants under

Order 9 Rule 13 CPC and under Section 5 of the Limitation

Act, 1963.

2. Briefly stated the facts of the case are that the plaintiff has

instituted the present suit for possession, permanent injunction

and recovery of mesne profits/damages against the defendants.

The defendants were served and had put in appearance through counsel on 26.04.2011. They were granted 30 days time to file

the written statement and reply to the interim application. The

matter was adjourned to 10.08.2011. After four months, when

the matter was taken up on 10.08.2011, there was no

appearance on behalf of the defendants. Consequently, they

were proceeded ex parte and the case was fixed for ex parte

evidence. The plaintiff filed the ex parte evidence by way of

affidavit, got the documents exhibited and consequently an ex

parte decree was passed against the defendants on 23.02.2012.

The defendants have filed the application (IA No.16552/2012)

for setting aside the ex parte decree on 06.09.2012 along with

an application under Section 5 of the Limitation Act, 1963

being IA No.1430/2013 seeking condonation of delay of 192

days in filing the application under Order 9 Rule 13 CPC.

3. I have heard the learned counsel for the defendants on both the

applications and have also gone through the reply filed by the

plaintiff. The main contention of the learned counsel for the

defendants for setting aside the ex parte decree passed against

them is that on the first date of appearance Ms.Manisha Suri, Advocate was engaged and she had put in appearance on

26.04.2011, but the defendants could not continue with the said

counsel on account of the ill-health of the defendant No.1 who

is an old person of 65 years of age and is suffering from various

ailments because of which he was in and out of the hospital. It

is also alleged that in addition to the ground of ill health, due to

financial constraints, the defendants could not continue with the

services of Ms.Manisha Suri, Advocate. It has been stated that

the moment the defendant No.1 regained his health, he filed the

application for setting aside the ex parte decree. He has further

stated that the delay which has taken place in filing the

application was only on account of financial constraints as well

as the ill-health of the defendant No.1. The defendants have

also placed on record photocopies of some of the prescriptions

and the medical tests of the defendant No.1 which are purported

to have been undergone by him.

4. The law regarding setting aside an ex parte decree is very clear

under Order 9 Rule 13 CPC. The same is that the defendant

must show that either he has not been served, or, if he has been served, then he has been prevented by 'sufficient cause'. A

cause is construed to be 'sufficient' only if it is a cause which is

beyond the human control. A cause like medical illness or

medical reasons will be taken to be a sufficient cause only if it

is of such a nature that it confines a person to bed or a hospital

which restricts his movement or activity of engaging a counsel

for the purpose of his defence in the suit. In the instant case,

the medical record which has been filed by the defendants only

shows that the defendant No.1 has undergone some medical

tests which undoubtedly show that the defendant No.1 is

suffering from medical ailments because of which he was

taking medicines and advised bed rest, but none of the

prescriptions is of such a nature which would show that the

defendant No.1 was confined to bed for all times to come which

would have disabled him from contesting the matter; more so,

when a counsel was engaged.

5. Not only the application under Order 9 Rule 13 CPC has to be

filed within thirty days of the passing of the decree or at least

from the date of knowledge when the decree comes to his notice but any delay in doing so must be sufficiently evidenced while

as the present application has been filed by the defendants after

a lapse of 192 days in respect of which they have sought

condonation of delay. With regard to the condonation of delay,

a party has to necessarily show 'sufficient cause' before such a

delay is condoned and a cause as has been stated above will be

construed to be 'sufficient cause' only when it is beyond human

control or conversely the court has interpreted a party who is

grossly negligent or a party which takes things for granted can

never be said to be vigilant enough to protect its interests and it

cannot be bracketed with 'sufficient cause'. In the instant case,

the defendants have taken the same plea which has been taken

in the main application as the ground which disabled him from

filing the application timely. As has been observed above, the

medical prescriptions which have been placed on record have

been perused by the court minutely and the court is not

convinced from any of the photocopies of the medical

prescriptions placed on record that these medical conditions

from time to time disabled the defendant No.1 from prosecuting

the matter or defending the matter. It seems on the contrary that this being a suit for possession, permanent injunction and

recovery of mesne profits/damages, the entire effort of the

defendants was to see that there is a delay in final disposal of

the suit and this could have been done by them only to first let

the court proceed with the case and then later on get their

application under Order 9 Rule 13 CPC allowed and put the

clock back. Such a thing cannot be permitted to be done at the

instance of unscrupulous litigants and cause delay in

expeditious disposal of the cases. I am not convinced at all with

the bona fides of the defendants that they were prevented by

'sufficient cause' either from filing the application under Order

9 Rule 13 CPC timely within 30 days from the date of passing

of the decree or prevented by 'sufficient cause' from defending

the matter after having duly been served and represented by a

counsel before the court. I, therefore, dismiss the applications of

the defendants both with regard to condonation of delay as well

as for setting aside the ex parte decree.

V.K. SHALI, J MAY 19, 2014/dm