Delhi High Court
M/S Samar Polytex Pvt Ltd vs Brij Mohan Gupta on 14 December, 2017
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 14th December, 2017
+ CM(M) 390/2015, CMs No.8033/2015, 26607/2015
M/S SAMAR POLYTEX PVT LTD ..... Petitioner
Through: Mr. Ajay Kumar, Advocate
versus
BRIJ MOHAN GUPTA ..... Respondent
Through: Mr. R.S. Kela, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The petition at hand challenges the order dated 12th February,
2015 of the Court of Civil Judge whereby the application of the
petitioner under Section 151 read with Section 141 of the Code of
Civil Procedure, 1908 (CPC) registered as M.No.28/2014 was
dismissed.
2. It is necessary to trace the backdrop of these proceedings,
albeit briefly. The respondent had instituted a civil suit against the
petitioner seeking money decree in the sum of Rs.1,55,000/-. The
petitioner (hereinafter referred to as 'the defendant') was admittedly
summoned in the said suit of the respondent (hereinafter referred to as
'the plaintiff') and appeared in response to the summons and filed his
written statement putting in his contest. It appears that the defendant
had also instituted a civil suit against the plaintiff which was pending
around the same time in another Court. In the civil suit at hand, the
defendant, after filing the written statement, chose to suffer the
proceedings ex parte at the stage of trial after issues had been framed
on 14th December, 1998. The case had reached the stage of final
arguments, the plaintiff having completed his ex parte evidence, when
the civil court (then presided over by additional district judge) by
order dated 9th April, 1999 recorded the view that the proceedings in
this suit be stayed till decision was rendered in the other suit which
had been brought by the defendant. Thus, the proceedings in this case
were stayed sine die with liberty given for revival after decision had
been rendered in the other case.
3. It is admitted that the suit instituted by the defendant against the
plaintiff of the present case was dismissed, the said judgment having
become final and binding. The plaintiff thus moved an application for
revival of the proceedings in his suit (at that time registered as suit
No.856/1997). By order dated 24th February, 2005, the additional
district judge noted that notice earlier issued on the application for
revival had been duly served on the defendant, but he had not
appeared. He, thus, allowed the application for revival, restoring the
case to its original number but, by abundant caution, directed fresh
notice to issue to the defendant about the revival of the proceedings in
the Suit.
4. The copies of the proceedings recorded in the wake of the above
order would reveal that on account of change of the pecuniary
jurisdiction, in terms of report made on 25th January, 2006 by the
additional district judge, the concerned district judge later made over
the case to the court of civil judge where the file came up for
consideration for the first time on 1st February, 2006. The civil judge
noted the previous proceedings and directed fresh notice to issue to the
defendant. On 15th April, 2006, it was recorded by the civil judge that
the report received earlier on record would show that the defendant
had been served on 1st October, 2005 but he had chosen not to appear
or contest. This observation is confirmed by copy of the
acknowledgement card that had been returned by the postal
department against the postal article whereby notice had been issued
for 1st October, 2005, the acknowledgement card confirming its
delivery at the correct address of the defendant, the receipt having
been acknowledged by a person named Pankaj. The civil judge
proceeded ahead noting further the fact that the defendant had suffered
the earlier proceedings also ex parte. On the basis of ex parte
arguments advanced, she rendered her decision in the case by
judgment dated 24th August, 2006, granting decree as prayed by the
plaintiff.
5. The defendant moved an application under Order IX Rule 13
CPC on 15th September, 2008 mainly pleading that it had not been
served upon him, attributing manipulation and playing of tricks to
obtain the ex parte decree. The application remained pending but not
diligently prosecuted. It eventually came to be dismissed in default of
appearance by order dated 18th October, 2011, the said order revealing
that the default had been regular and consistent for several dates.
6. Against the aforesaid backdrop, another application was filed
now invoking Section 151 read with Section 141 CPC submitted on
23rd November, 2012, thus more than a year after the dismissal in
default of the earlier application under Order IX Rule 13 CPC, the
default being attributed partly to the counsel and partly explained for
reasons of other preoccupations of Mr.Naresh Bhatia, Director of the
company who, as per the submissions, was constrained to be on
official travels too frequently. The application was listed on several
dates but with no interest shown by the defendant for its effective
hearing. Eventually, by virtue of the preceding order, the application
was taken up by the civil judge on 12th February, 2015, it having been
clarified in the last order that this was the last and final opportunity for
the defendant to argue. Conspicuously, there was again absence of the
defendant/applicant. In the application, reference had been made to
Article 137 of the Limitation Act to plead that the application could be
maintained within the period of three years. The learned civil judge
found this submission to be incorrect and referring to Article 122 in
the Schedule to the Limitation Act, recorded that the application was
badly time barred as it should and could have been filed within the
period of 30 days only. Be that as it may, even the grounds set out in
the application did not impress the Civil Judge. He thus dismissed the
application.
7. The facts and circumstances noted above clearly reveal that the
defendant has just been dragging feet. The default in appearance at
several stages of the proceedings has remained unexplained. In
absence of any application seeking condonation of delay, the
application which was dismissed by the impugned order even
otherwise could not have been entertained.
8. Thus, the impugned order does not suffer from any illegality or
infirmity. The petition is dismissed with costs of Rs.25,000/-.
R.K.GAUBA, J
DECEMBER 14, 2017
pk
