Delhi High Court
Vinay Kumar Rai vs Meena Rai on 26 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 380/2017
% 26th September, 2017
VINAY KUMAR RAI ..... Appellant
Through: Mr. R.N. Dubey, Advocate.
versus
MEENA RAI ..... Respondent
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. 35455/2017 (for exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
FAO No. 380/2017 and C.M. Appl. No. 35454/2017 (for stay)
1. This first appeal under Order XLIII(1)(d) is filed by the
defendant impugning the order of the trial court dated 5.9.2017 by
which the trial court has dismissed the application filed by the
appellant/defendant under Order IX Rules 7 and 13 CPC for setting
aside of the ex-parte judgment and decree dated 23.7.2015. By the
judgment and decree dated 23.7.2015 suit of the
respondent/plaintiff/sister was decreed against the
appellant/defendant/brother for a sum of Rs. 8,44,000/- along with
interest at the rate of 12% per annum. Respondent/plaintiff had filed a
suit against the appellant/defendant that she had given a loan to the
appellant/defendant, and which was by withdrawing of moneys of
Rs.5,00,000/- and 3,44,000/- from the bank account of the
respondent/plaintiff. In order to secure the loan, the
appellant/defendant had executed a promissory note dated 30.4.2010,
and which was proved in the ex-parte evidence of the
respondent/plaintiff as Ex.PW1/1. The Manager of State Bank of
India appeared as PW-3 and proved the statement of account of the
respondent/plaintiff for the period from 1.4.2010 to 30.4.2010 as
Ex.PW3/1.
2. In the subject application under Order IX Rules 7 and 13
CPC, the appellant/defendant pleaded that there existed sufficient
reasons for his non-appearance when the case was repeatedly listed for
appellant/defendant's evidence because the wife of the
appellant/defendant was seriously sick and the mother of the
appellant/defendant was also seriously sick. It was stated that the
appellant/defendant came to know about the ex-parte judgment and
decree dated 23.7.2015 in August, 2015 form reliable sources and
thereafter the appellant/defendant tried to get in touch with his
Advocate but the Advocate did not co-operate. After the certified
copies were applied on 10.8.2015, the same could only be collected on
December, 2015 since the son of the appellant/defendant met with an
accident on 3.10.2015 and it was accordingly pleaded that the ex-parte
judgment and decree be set aside as the appellant/defendant had
sufficient cause for non-appearance.
3. From the facts of the case it is seen that the case was
fixed for evidence of the appellant/defendant on 3.3.2015, 25.3.2015,
24.4.2015, 15.5.2015 and 6.7.2015. It was only on 6.7.2015 after
appellant/defendant did not lead evidence for three dates of hearing
(on two dates of defendant's evidence there was lawyer's strike) hence
appellant/defendant's evidence was closed and he was proceeded ex-
parte vide order dated 6.7.2015. As already stated above, the
respondent/plaintiff proved her case in her ex-parte evidence.
4. There are four reasons argued by the appellant/defendant
as justifications for his non-appearance on repeated dates fixed for his
ex-parte evidence. First is of the illness of his wife, and which
counsel for the appellant/defendant today states in this Court that
illness was not of his wife but it was a typing mistake, because illness
was of appellant/defendant's mother. The second justification which
is given by the appellant/defendant is that his mother was not well,
and today the counsel for the appellant/defendant states it was not
appellant/defendant's mother but it was his step-mother who was not
well. The mother of the appellant/defendant is stated to have expired
on March, 2015 and the step-mother of the appellant/defendant is
stated to have expired on September, 2015. The third justification
which is given for non-appearance is that the son of the
appellant/defendant met with an accident on 3.10.2015 and for which
treatment continued till December, 2015. The fourth justification
given in this Court, for the first time, is that the appellant/defendant
himself was not well and undergoing treatment.
5. It is seen that the event of death of the mother/step-
mother of the appellant/defendant are of March, 2015 and September,
2015, i.e not of the period when the case was fixed for evidence from
March, 2015 till July, 2015. If the mother expired in March, 2015
then the death of the mother cannot be a reason for
appellant/defendant's non-appearance from March, 2015 right till
6.7.2015. The step-mother of the appellant/defendant also expired on
September, 2015 and which is after the period from March, 2015 to
July, 2015. What is more important is that the appellant/defendant has
not pleaded and given any particulars or details in the subject
application under Order IX Rules 7 and 13 CPC and the nature of
illness of his mother and step-mother and as to how the
appellant/defendant therefore was completely occupied in the
treatment and hence was not pursuing the court case or doing any of
his ordinary avocation/business.
6. So far as the accident of the son in October, 2015 is
concerned and his subsequent treatment till December, 2015, once
again the period from October, 2015 to December, 2015 is not only
beyond the period of dates fixed from March, 2015 to July, 2015 for
the evidence of the appellant/defendant, but also that admittedly
appellant/defendant admits that he applied for certified copy of the
record in August, 2015 and therefore the appellant/defendant had
enough time from August, 2015 till beginning of October, 2015 to file
the subject application for setting aside ex-parte proceedings, but the
appellant/defendant did not do so.
7. Trial court has rightly observed that appellant/defendant
has only conveniently blamed his Advocate and it is not as if even a
single letter has been written by the appellant/defendant to his
Advocate for the alleged default of the Advocate, much less of the
appellant/defendant filing any complaint with the Bar Council. I must
note that it is these days a habit that most of the litigants who are
negligent in conducting their cases blame their Advocates for setting
aside ex-parte proceedings or for setting aside the orders dismissing
judicial proceedings for default/non-prosecution. Trial court has
therefore rightly disbelieved the case of the appellant/defendant of
blaming his Advocate.
8. Counsel for the appellant/defendant argued that
appellant/defendant himself was not well in the relevant period, and
reference is invited to a prescription slip of 31.7.2015 to show the
illness of the appellant/defendant. This prescription slip is of one Dr.
Surender Mishra and all it shows is that the appellant/defendant
conducted an EEG on 31.7.2015. There is not only nothing on record
with respect to the length or seriousness of the alleged illness of the
appellant/defendant, but also it is relevant to note two important
aspects that firstly the date of the prescription slip is 31.7.2015 i.e
after the appellant/defendant was proceeded ex-parte with the suit
being decreed in terms of the ex-parte judgment and decree dated
23.7.2015 and secondly that this ground of the appellant/defendant's
illness as being sufficient cause is not even pleaded in the subject
application under Order IX Rules 7 and 13 CPC. I have carefully
gone through the application and I do not agree with the argument of
the appellant/defendant that the appellant/defendant's illness as
pleaded is a reason and sufficient cause for setting aside the ex-parte
proceedings in the application under Order IX Rules 7 and 13 CPC.
9. There is no merit in the appeal and the same is hereby
dismissed.
SEPTEMBER 26, 2017 VALMIKI J. MEHTA, J
AK
