Delhi High Court
Pt. Gopal Prasad Shastri & Anr. vs Subhash Chand Verma & Ors. on 21 May, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.438/2012 & CM No. 18197/2012 (Stay)
% 21st May, 2014
PT. GOPAL PRASAD SHASTRI & ANR. ..... Appellants
Through: Mr. Bheem Sharma & Mr. R.S. Sharma,
Advocates
Versus
SUBHASH CHAND VERMA & ORS. ..... Respondents
Through: Mr. Sindhu Sinha, Advocate for R-1 & 2
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 under Order 43 (1)(d) CPC against the
impugned order of the Court below dated 29th August, 2012 by which the
Court below has dismissed the application filed by the appellants-defendant
nos. 1 and 2 under Order 9 Rule 13 CPC. The application under Order 9
Rule 13 CPC was filed for setting aside the ex-parte judgment and decree
dated 20th November, 2009 for a sum of approximately Rs. 2,32,000 along
with interest. The subject suit was filed on account of the claim of
respondent nos. 1 and 2-plaintiffs of their being maliciously prosecuted by
FAO 438/2012 Page 1 of 4
the appellants along with other persons as a result of which the respondent
nos. 1 and 2-plaintiffs were imprisoned for four days and and were
suspended from their job for 24 months.
2(i) The Court below has dismissed the application by arriving at two
important conclusions. The first conclusion is that the appellants-defendant
nos. 1 and 2 falsely contended that the suit was compromised on the
appellants-defendant nos. 1 and 2 paying an amount of Rs. 10,000/- to the
respondent nos. 1 and 2-plaintiffs,inasmuch as there was no proof of
payment of this amount of Rs. 10,000/- to the respondent nos. 1 and 2-
plaintiffs and much less a document existed to show the settlement of
disputes which were the subject matter of the suit. To the aforesaid
conclusion of the Court below I would like to add that it would be very
strange that the suit for approximately an amount of Rs. 2,32,000 with
interest would be settled for a sum of Rs. 10,000/-. The suit was originally
filed for a sum of Rs. 5 lakhs approximately, but the same was decreed for
an amount about Rs. 2,32,000/- in favour of the respondent nos. 1 and 2-
plaintiffs.
(ii) The second reason given for dismissing the application was that the
appellants-defendant nos. 1 and 2 took up a false case that they had not
FAO 438/2012 Page 2 of 4
authorized one Rakesh Aggarwal, Advocate and in any case it was the duty
of the appellants-defendant nos. 1 and 2 to appear in the suit. The relevant
paragraphs of the impugned judgment is para no. 8 and which reads as
under:-
"8. The ground, on which the applicant/defendant no. 1 is
seeking the setting aside of the judgment/decree dated
20.11.2009 is that he had not authorized any Mr. Rakesh
Aggarwal to appear on his behalf in the Hon'ble High Court
and that after the receipt of the notice/summons from the
Hon'ble High Court, he had settled the matter with the
plaintiff/non-applicant for the sum of Rs. 10,000/- and that the
plaintiff had assured him that he would withdraw that instant
suit. Therefore, whether defendant no. 1 had authorized Mr.
Rakesh Aggarwal or not to appear on his behalf, would be
inconsequential, as he has himself admitted that he had
received the summons from the Court. Once a party received
the summons from the Court, he is duty bound to appear before
the Court either in person or through an authorized pleader and
if the defendant no. 1 had not authorized Mr. Rakesh Aggarwal
to appear on his behalf then it was his duty to appear in person,
in which he failed. Moreover, if any compromise had been
effected and an amount of Rs. 10,000/- had been paid by him to
the plaintiff there would have been a written document/receipt,
issued by the plaintiff to the effect, but no such document has
been brought on record by the applicant/defendant no. 1.
Therefore, the averments made by the applicant/defendant no. 1
are bald one and totally unsubstantiated and therefore, do not
inspire any confidence and cannot be relied upon. When a party
willfully do not appear before the Court, such a party had to
face any consequent orders, which are passed by the Court.
Principal of natural justice have not been flouted in the instant
case and therefore, the contentions raised on behalf of the
applicant/defendant are without any force."
FAO 438/2012 Page 3 of 4
3. I completely agree with the conclusion of the trial Court and I find that
the appellants-defendant nos. 1 and 2 are setting up a false case. In fact
appellants-defendant nos. 1 and 2 are taking up conflicting stands because at
one place it is claimed that they were not served in the suit but in the same
breath it is stated and contended that they were served and they
compromised the suit with the respondent nos. 1 and 2-plaintiffs for a sum of
Rs. 10,000/-. Also I may note that if Mr. Rakesh Aggarwal, Advocate had
appeared without any instructions of the appellants-defendant nos. 1 and 2,
then, the appellants would surely have issued a notice to the said Rakesh
Aggarwal, if not having filed a complaint against him in the Bar Council.
Therefore, all the defences of the appellants-defendant nos. 1 and 2 are sham
and taken up only with the object to delay and defeat the money decree
which has been passed in favour of the respondent nos. 1 and 2-plaintiffs.
4. In view of the above, there is no merit in the appeal, and the same is
therefore dismissed, leaving the parties to bear their own costs.
MAY 21, 2014 VALMIKI J. MEHTA, J.
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