Supreme Court Bar Association vs Mam Chand Sharma
2017 Latest Caselaw 6547 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            FAO No. 449/2017

%                                                 17th November, 2017

SUPREME COURT BAR ASSOCIATION                           ..... Appellant

                             Through:    Mr. R.K. Tikku, Sr. Advocate
                                         with Mr. Sujeet Kumar Mishra,
                                         Advocate.

                             versus

MAM CHAND SHARMA                                       ..... Respondent

                             Through:    Mr. Sarfaraz Ahmed and
                                         Ms.Ruchi Jain, Advocates.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 41460/2017 (for delay)

1. This is an application seeking condonation of delay of 95

days in filing the appeal.

2. For the reasons stated in the application the same is

allowed and the delay is condoned, subject to just exceptions.

C.M. stands disposed of.

FAO No. 449/2017 and C.M. Appl. No. 41459/2017 (for stay)

3. This First Appeal is filed under Order XLIII (1)(d) CPC

impugning the order of the trial court dated 30.5.2017 by which the

trial court has dismissed the application under Order IX Rule 13 CPC

filed by the appellant/defendant.

4. The facts of the case are that the respondent/plaintiff filed

the subject suit for recovery of Rs.6,63,591/- from the

appellant/defendant on account of unpaid dues for the renovation work

done. On being served appellant/defendant appeared and filed its

written statement and prayed for dismissal of the suit on the ground

that all payments were made and nothing was remaining due. It was

also pleaded by the appellant/defendant that the workmanship of the

work of the respondent/plaintiff was not up to the mark and that the

respondent/plaintiff is only entitled to payment to those invoices

which are approved and verified by the appointed Architect.

Appellant/defendant denied its liability to pay the suit amount.

5. Issues were framed in the suit on 2.4.2013 and thereafter

evidence was led by the respondent/plaintiff by examining not only

himself but the appointed Architect of the appellant/defendant as

PW2. None of these two witnesses were cross-examined by the

appellant/defendant and who also did not lead evidence and

consequently the suit was decreed for Rs.6,63,591/- along with interest

at the rate of 14% per annum.

6. The subject application under Order IX Rule 13 CPC was

filed by the appellant/defendant pleading that it had appointed an

Advocate Sh. Anjani Kumar Mishra up to the year 2014 when his wife

was taken ill and admitted to hospital and she expired on June, 2014.

It is pleaded that the Advocate had informed the appellant/defendant

that he would not be able to appear in the suit and the matter be

assigned to someone else. It is, however, noted that the junior of Sh.

Anjani Kumar Mishra, Advocate namely Sh. Shailender Mishra,

Advocate, kept on appearing in the case. Inspite of appearance

through an Advocate appellant/defendant did not lead evidence and

took time for some settlement. It is pleaded by the appellant/defendant

that they came to know about the judgment and decree only when the

amount was attached from their bank account.

7. Trial court, in my opinion, has rightly dismissed the

application under Order IX Rule 13 CPC because in this case the issue

was not that the appellant/defendant was not served but whether the

appellant/defendant had sufficient cause for non-appearance.

Sufficient cause for non-appearance in this case is to be taken in the

context that the appellant/defendant had engaged an Advocate, the

Advocate had appeared, and thereafter even the junior of the

Advocate, namely, Sh. Shailender Mishra appeared on 18.11.2014,

19.2.2015, 31.3.2015 and 1.4.2015. Appellant/defendant stopped

appearing in the Court from 21.5.2015 and whereafter the evidence of

the respondent/plaintiff was recorded. Appellant/defendant therefore

had knowledge of the proceedings in the suit through its Advocate.

8. Trial court has rightly observed that on 2.5.2013 affidavit

by way of evidence of PW1 was taken on record and copy of which

was supplied. Thereafter, the case came up for cross-examination of

PW1 on 19.2.2015 and which cross-examination was not done and in

fact thereafter the matter was adjourned thrice. Once again on

21.5.2015 no one appeared for the appellant/defendant but yet the trial

court yet did not pass an adverse order but again adjourned the matter

for 16.7.2015. It is only on 16.7.2015 that the right to cross-examine

PWs was closed on account of non-appearance of the

appellant/defendant till 1:00 p.m. on this date fixed. Thereafter, the

appellant/defendant did not appear and hence evidence of the

appellant/defendant was closed.

9. The aforesaid facts shows that the appellant/defendant

was duly represented by its Advocate. An Advocate is the agent of a

client. Appearance by an agent/advocate is to be taken as

acknowledgement of the appearance and knowledge of the client

being the appellant/defendant. Once that is so, appellant/defendant

cannot urge that it came to know of the ex-parte decree only when the

decretal amount was attached from its bank account.

10. There is no merit in the appeal and the same is hereby

dismissed.

NOVEMBER 17, 2017                          VALMIKI J. MEHTA, J
AK