Kishan Lal vs Veena Kumari
2016 Latest Caselaw 1418 Del

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*            IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                           Date of Decision : February 23,2016


+                                        FAO(OS) 536/2015
             KISHANLAL                                                .....Appellant
                                         Representedby:     Mr.BaharU.Barqi,Adv.

                                         versus

             VEENAKU
                   MARI                                                         ..... Respondent
                                         Representedby:               Ms.RenuVerma,Adv.withMr.D.S.Vohra,Adv.

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (ORAL)

1. Yet another instance of extreme supine negligence by a learnedmember of theBar, bordering on professional misconduct, in respect ofwhichconductwefind that theBarCouncil ofDelhi has takencognizanceof a complaintmadeby the appellant.

2. VeenaKumari, theplaintiff of the suit and the respondent in the appeal, is thewifeof oneRameshKumarwho is thebrother of the appellant :KishanLal, impleadedas thedefendant in the suit.AsperVeenaKumari, thepropertybearing Municipal No.48, Block-D, PrashantVihar, ad-measuring 80.78 squaremeterswas ownedby her father-in-law : late Sh.Bal Kishan.Asper her, BalKishanhadexecuted awill onDecember 26, 1991bequeathing the property in favourof her husband RameshKumar, and thereforeon the deathofBalKishanonJune23, 1996,herhusbandbecametheownerof theproperty.Onthe strengthof thewill, her husband sold theproperty to her and thus shebecame theowner of theproperty.Asper her, late ShriBalKishanhadpermitted the appellant, beinghis son, to live on the first floor of the propertyas a licensee.We

understand the pleading tomean that the possessionwaspermissivewithout anyconsideration to be paidby the son to the father. Pleading further that afterher father-in-lawdied, inviewof thewill datedDecember26, 1991, herhusbandsold the property to her she pleaded that she revoked the permissiongranted byher father-in-lawand calledupon the appellant to vacate thepremises inhis possessionandsincehedidnot do so shewas constrained to file the suit seekingpossessionand damages forunauthorizeduseandoccupation.

3. Admitting the suit onDecember23, 2009, summonsweredirected tobe serveduponKishanLal returnable forFebruary 19,2010,onwhichdate the learnedJudgebeingon leave, theCourtMaster adjourned the suit toMay12, 2010.

4. In the interregnum, onMarch 12, 2010 awritten statementwas filed by the appellant alongwith reply to an application filed byVeenaKumari praying for interimorders.Documents onwhich the appellant relied were also filed.An applicationwas also filedprayingfor delay in filing thewritten statement to be condoned.Allwere filedunder a common index.

5. TheRegistry raised an objection concerning somedocumentswhichwere in vernacular, requiring the same to be translated.Proper court feebeing not affixedupon thevakalatnamafiled, as also the interimapplicationfiledpraying that delay in filing thewritten statementbecondonedwasanotherobjectionraised.Theaffidavit required tobe filed in support of thewritten statement, beingnot attested by anOathCommissionerwas also an objection raised. Therefore, thewritten statementwasnot placed in the suit file. It continued to lie in the filingcounter requiring the learnedcounsel engagedby theappellant to takeback the sameand re-file it after removing the objections.

6. Thecounsel PankajMalik,was thus to ensure that thewritten statement, reply to interimapplicationas also the applicationpraying for delay tobecondoned in filingwritten statementwere takenback fromtheRegistryof thisCourt and re-filedafter removing theobjections.

7. Asregards theappellant, havingentrusted thebrief to thecounsel, theappellantwouldbeentitled to thebenefit of showingduediligence in takingsuchstepswhicha litigantneeds to takewhenservedwithsummons in asuit.

8. OnMay12, 2010oneMr.KetanMalhotra appeared for the appellant andwas informedby the learnedSingle Judge that thewritten statementwasnot on record and thus steps shouldbe taken to ensure that thewritten statementwasbrought on record.Hearingwasdeferred toAugust30, 2010before the learnedJointRegistrar, onwhichdateonceagainMr.KetanMalhotra appeared. The learned JointRegistrar informed the counsel that thewritten statementwas yet to bebrought on the record.

Learned JointRegistrar noted that the replicationhadbeen filed andwasplaced in the judicial file. Hearingwasdeferred for parties to admit/denyrespectivedocuments filedand reliedupon. Thenextdate fixedwas forNovember 26, 2010,onwhich date, onceagainMr.KetanMalhotra appeared for the appellant andwas informedonceagain that thewrittenstatementwasnot brought on recordnorwere thedocuments filedby the appellant. Imposingcost in sumof `5,000/- the suitwas listed for February02, 2011 for parties to conduct admission/denial of thedocuments by theother party as also for the appellant to ensure that thewrittenstatementwasbroughton recordafterobjectionswere removed.

9. OnFebruary02, 2011neitherwaswritten statementbroughton the record after removing theobjectionsnor did the counsel appearbefore the learnedJointRegistrar.The learnedJointRegistrarplaced thematterbeforeCourt onMay20,2011, onwhichdateonceagainnobodyappeared for theappellant.Theappellantwasproceededagainst ex-parte. Itwasnotedby the learnedJudge thatdespite cost imposed thewrittenstatement filed in theRegistrywhichwas returnedwithobjectionswasnot re-filedafter curing thedefects. Theplaintiffwasdirected to lead ex-parte evidence.Matterwasplacedbefore the learned JointRegistrar for recordingof evidenceonAugust 23, 2011.Onsaiddate the learned JointRegistrar recordedplaintiff's ex-parte evidence and listed the suit before theCourt forNovember 02, 2011, onwhichdate the ex-parte decreewaspassed against theappellant.

10. Thedecree beingput into execution, the appellant filed IA16571/2012 invokingOrder 9Rule 13of theCodeof Civil Procedure. The said applicationwas accompaniedby IA16572/2012, invokingSection5of theLimitationAct, 1963.The twoapplicationswere listedbefore the learned JointRegistrar onSeptember07, 2012andnoticewas issued to theplaintiff returnable forFebruary05, 2013.Thematter lingeredonafter thedecreeholder i.e. plaintiffwasserved.Replywas filed to the twoapplications.

11. OnAugust04, 2015bothapplicationsweredismissedby the learnedSingle Judge.

12. Historywritten in theorder-sheets fromthedatewhen the suitwas filed tillwhenex-partedecreewaspassedhas beennotedby the learnedSingle Judge to highlight that the appellantwas served; the appellant's claim to have filed a written statement, but taking no steps to ensure that the objections listed by theRegistrywere cured and thewritten statementwas brought on record. The learnedSingle Judge has highlighted that till when the counsel for the appellant disappearedonFebruary02, 2011, enoughopportunitiesweregivenby theCourt to cure thedefects in thewritten statement filed. The learnedSingle Judge further noted that onApril 27, 2012,Mr.PankajMalik,Advocate andhis associateMr.Pramod

KumarOberoi had inspected the suit file.The learnedSingle Judge furthernoted that thereafter onJune 02, 2012,August28, 2012andOctober10, 2012oneMr.A.Tewari,Advocatehadalso inspectedthe suit file.The learnedSingle Judgenoted that the vakalatnamaexecuted in favour of Mr.A.Tewari hadbeen filed onOctober 18, 2012. The learnedSingle Judgehas noted that thereafter the applicationswere filed in theRegistry onAugust 21, 2012. The learnedSingle Judge has noted that the admission in paragraph17of the applicationof the fact that the appellant learnt about the ex-parte decreewhencounsel inspected the suit file onApril 27, 2012would require the appellant to explainwhy the applications were filed after 11 months thereof.Findingnoexplanation the twoapplicationshavebeendismissedby the learnedSingle Judge.

13. Learned counsel for the respondent relies upon a decision of the SupremeCourt reported as (2015) 1SCC680 H.Dohil Constructions Co. (P) Ltd. Vs. Nahar Exports Ltd.,whereindelay in re-filing theappealsof1727days, liberallycondonedbyaDivisionBenchof thisCourt,washeldnot tobecondonable.

14. Learned counsel for the respondentwould therefore urge that as in the case before theSupremeCourt where the counselwasnegligent innot removing theobjectionsby theRegistryandre-filed theappeals after1727days, similarwas the positionherealbeitwith the timespanbeing lesser.

15. Thedecision relied upon by the learned counsel for the respondentwould evince that the SupremeCourt found negligenceby theparty in additionto thenegligenceby thecounsel onaccountof the fact that requisitecourt feeshadnot beenpaid in thememorandumof appeals and thiswas to theknowledgeof theclient, requiring theclient topaycourt feeand get removed theobjections fromtheRegistry. Thedefect in the filing,wasof the kindwhichwas to theknowledgeof the client. The observations of the SupremeCourt in relation to themaxim vigilantibus non dormientibus jura subveniunt i.e. lawassists thosewhoare vigilant andnot thosewho sleep over their rights, have to be understoodwith reference to the factsof the saidcase.

16. Fromthe facts noted byus hereinabove it is evident that the appellant didwhatwas required to be donebya litigant. Servedwith the summons in the suit the appellant contacted the counsel, paid the fee,which wepresumewaspaid. Gotdrafted thewritten statement, signedandverified the same.Vakalatnama in favourof thecounselwasexecuted.Documents relieduponwerehandedover.Thecounsel thereafterwasnegligent.

17. Lawtreatsnegligencebyanagentdistinctlyvis-a-visnegligencebyaparty.Negligenceby theagent, if adversely affects theprincipal, is condonedmore liberally.

18. Though bitter, but the truth is, a perception in theminds of the citizens of this Country that theCourt proceedings linger on for decades the litigantswouldbe justified ingoing into a slumber awaiting instructions fromtheir lawyer tocontact the lawyer for further instructions.

19. Thenature of the claimas also thedefence is a factor to bekept inmindwhen rights of parties are adversely affecteddue to lapsesby their counsel. Thewritten statement bringsout the ancestral natureof theproperty,whichwould raise a seriouschallenge to thevery right of lateShriBalKishan tohaveexecuted thewill in favourof his son.The fact thatwithout a probate, on the strengthof thewill the sale-deedhadbeenexecutedbyBalKishan in favourof onesonalso has tobe taken intonote.

20. Knowledgeattributed to the appellantby the learnedSingle Judgewhensuit filewas inspectedbyMr.PankajMalik, AdvocateonApril 27, 2012overlooks the fact that the samecounselwas thenegligent counsel, andwehavenoevidence that Mr.PankajMalikmet theappellant andinformed that the suit hadbeendecreedagainst himex-parte.

21. After-all, humannature is to hideonesmistakes as alsonegligence.Thus, knowledge to the appellant of the ex- partedecreewith reference to the inspectionof the suit file carriedout byMr.PankajMalik is awrongfinding returnedby the learnedSingle Judge.

22. Thefactsof the instant casebringout a taleofmiseries for theappellant andhebeing let downbyhiscounsel.

23. The totalityof the facts notedhereinabovewarrant discretion tobe exercised in favourof the appellant for the reason the appellant has explainedsufficient cause for setting aside of the ex-parte decree as also sufficient cause to condone thedelay in filing theapplicationseekingsettingasideof theex-partedecree.

24. Theplaintiff needs tobe recompensed.Here lies thedilemmafor theCourt. It is thenegligent partywhichhas to recompense theone towhominjury is caused.Thenegligent party is thecounsel. The facts of this casebringout theurgent need to start m i posingpersonal cost on lawyers for beingnegligent innot actingproperly for their clients andnot taking ministerial steps to ensure, as in the instant case, that thewrittenstatement filed is curedof the defective filing.We hope that theoccasionnever ariseswhenaCourtwouldbe compelled to imposepersonal cost ona learnedmemberof theBar. Whyshould theappellant bear theburdenof thecost to recompense theplaintiff the lossoccasioneddue todelay indisposal of the suit,whichwouldbe thedirect result of the ex-parte decreebeingset aside.At this stage, learnedcounsel for the appellant states that theappellantwould recompense theplaintiff `25,000/- for the inconveniencecaused.

25. Wedisposeof theappeal settingaside the impugnedorderdatedAugust02, 2015. IANos. 16571/2012and16572/2012 are allowed.Delay in seeking setting aside of the ex-parte decree datedNovember 02, 2011 is condoned. For the reasons explainedandfinding the sametobesufficient cause,weset aside theex-partedecreedatedNovember02, 2011.

26. Wenote that thewritten statement whichwas filedby thedefendant alongwith thedocumentshasbeen filedby the learnedcounsel for thedefendantundercoverof IANo.1914/2015.Wealsodisposeof saidapplication, inwhichprayermade to the learnedSingle Judge is to taketheadditionaldocumentson record. Theadditionaldocumentswere simply three : the index containing thewritten statement alongwith list of documents (withdocuments enclosed), and reply to theapplicationseeking interiminjunctionas also theapplicationpraying for thedelay in filing thewritten statement tobecondoned.Wefind that theobjections raisedby theRegistrywerenot to thewrittenstatement but to thedocumentswith reference to someof themin vernacular and translated copies thereof not being filed. Theobjectionwas also to thevakalatnamaas also the application filedby theappellant seekingdelay tobecondoned in filing thewritten statement.The twowerenot stampedproperly.There is alsoanobjection to theaffidavit in support of thewrittenstatementnotbeingdulyattested.

27. Tountie theknot,wecondone the delay in filing thewritten statement permitting the appellant to takecurative actionbyfilinga freshaffidavit requiredasper lawin support ofwrittenstatementdulyswornbefore anOathCommissioner. Thedocuments filed alongwith thewritten statement under cover of indexdatedMarch12, 2010are takenon recordwith a direction that either exemption be sought fromfilingEnglish translation of the documents in vernacular or to have the documents translatedand filed the translatedversion thererof.Needful shall bedoneby theappellantwithin sixweeks from today.

28. CS(OS)2527/2009shall be listed for directionsbefore the learnedSingle JudgeonMarch08,2016.

29. Wenote that the value of the suit for the purpose of jurisdiction is `22 lacs. The suitwould require to be transferred to theDistrict Court. The suit property in respect of whichpossession, damages/mesneprofits are claimed is situated at PrashantVihar. The suit filewouldbe transferred to suchDistrictCourtwithinwhose territorial jurisdiction the suit property is situated.

30. Theappeal is disposedof.

CM No.20751/2015 Dismissedas infructuous.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE FEBRUARY 23, 2016 km