Delhi High Court
Vipin Bhardwaj vs Ashok Bhalla on 30 October, 2018
$~99
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 30.10.2018
+ CM(M) 363/2018
VIPIN BHARDWAJ ..... Petitioner
Through: Mr. Zahid Ali, Advocate.
versus
ASHOK BHALLA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
CM APPL 12626/2018 (for Exemption)
1. Allowed, subject to all just exceptions.
CM APPL 12628/2018 (for condonation of delay)
2. For the reasons stated in the application the delay of 13 days in
re-filing the petition is condoned. The application is disposed of.
CM(M) 363/2018 & CM No. 12627/2018 (for stay)
3. The order dated 20.12.2017 passed by the Court of learned
Additional District Judge, West District, Tis Hazari Courts, Delhi
('ADJ'), dismissing the appeal of the petitioner/appellant/defendant
against the order dated 13.10.2016 in MCA No. 45216/2016 declining
his application under Order IX Rule 13 of the Code of Civil
CM (M) No.363/2018 Page 1 of 6
Procedure, 1908 ('CPC'), is the subject matter of challenge in this
petition filed under Article 227 of the Constitution of India.
4. The Respondent/plaintiff filed a suit for recovery of
Rs.2,11,533/- on 16.04.2007 against the petitioner before the learned
'ADJ'. After filing the written statement, the issues were framed by
the learned Civil Judge on 07.07.2010. The petitioner stopped
appearing thereafter and he was proceeded ex-parte on 18.04.2013.
The suit of the respondent for recovery of Rs.2,09,333/- with interest
@ 8% P.A was decreed ex-parte in his favour and against the
petitioner on 06.08.2013.
5. The petitioner filed an application under Order IX Rule 13 read
with Section 151 CPC on 15.04.2015 for setting aside the ex-parte
judgment and decree dated 06.08.2013.
6. The learned counsel for the petitioner contends that the
petitioner is one of the Directors of M/s Logistics Linkage (India) Pvt.
Ltd. and the said company through its Attorney filed a suit for
recovery of Rs.4,60,000/-, bearing No.90/2008, against the son of the
respondent. He urges that the matter was amicably resolved between
the parties orally and it was agreed that neither party shall pursue the
respective suits. He submits that under impression of settlement, the
petitioner stopped appearing in the present case. He also contends that
the suit filed by his company was dismissed in default on 10.09.2008.
Restoration application filed on 02.02.2009 was also dismissed in
CM (M) No.363/2018 Page 2 of 6
default on 16.11.2010. The second application for restoration was
dismissed in default on 01.09.2011. Third application for restoration
was dismissed on 10.01.2013 when neither party appeared due to an
oral settlement. He further submits that the petitioner came to know
only on 05.04.2015 from the son of the respondent that ex-parte
judgment & decree has been passed against him, upon which he
immediately filed an application for setting aside the ex-parte
judgment and decree dated 15.04.2015.
7. While dismissing the application under Order IX Rule 13 CPC,
the learned ADJ has given his findings:-
"In the present suit for recovery of a sum of Rs.
2,11,533/-, defendant was proceeded ex-parte by
my Ld. Predecessor vide order dated 18.04.2013
and thereafter after recording ex-parte evidence an
ex-parte judgment was pronounced against the
defendant on 06.08.2013 in which defendant was
ordered to pay the above sum alongwith interest @
8%. Plea of Ld counsel for the defendant that there
was oral agreement between the party not to pursue
the cases filed against each other does not inspire
any confidence. When there are cross cases
pending between the parties, an ordinary prudent
person would not orally settle with the other
without the same be reduced into writing and in
case it is orally settled he would definitely ensure
that the same is withdrawn. It is unbelievable that
a person stops appearing in a case without even
bothering to know about the fate of the case. He
was only required to make a single phone call to
CM (M) No.363/2018 Page 3 of 6
his counsel to know the status of the present suit.
Defendant cannot put appearance in a case as per
his own convenience and timing. The present suit
was filed by the plaintiff in the year 2007 and after
six years it was decreed in the year 2013. When the
time to enjoy the benefits of the same defendant
cannot create obstacles by raising the pleas which
do not inspire any confidence".
8. If there was a settlement, it was expected from both the parties
to get the settlement reduced to writing and place it on record of both
the cases by moving necessary application under Order XXIII 'CPC'.
The suit filed by M/s. Logistic Linkage (India) Pvt. Ltd. is not the
personal matter of the petitioner and it was not against the respondent
but against his son.
9. Even today, learned counsel for the petitioner has failed to
pinpoint even the date of the alleged oral settlement. The Petitioner
has also not mentioned as to when he informed his counsel about the
settlement which had allegedly taken place between the parties. Name
of his lawyer is also not indicated. The petitioner did not take any
action against his lawyer for his negligence. While disposing of RFA
No.497/2017 in Moddus Media Pvt. Ltd. vs. M/s. Scone Exhibition
Pvt. Ltd., 2017 SCC OnLine Del 8491, I have held that "The litigant
owes a duty to be vigilant of his rights and is also expected to be
equally vigilant about the judicial proceedings pending in the court of
law against him or initiated at his instance. The litigant cannot be
permitted to cast the entire blame on the Advocate. It appears that the
CM (M) No.363/2018 Page 4 of 6
blame is being attributed on the Advocate with a view to get the delay
condoned and avoid the decree. After filing the civil suit or written
statement, the litigant cannot go off to sleep and wake up from a deep
slumber after passing a long time as if the court is storage of the suits
filed by such negligent litigants. Putting the entire blame upon the
advocate and trying to make it out as if they were totally unaware of
the nature or significance of the proceedings is a theory put forth by
the appellant/applicant/defendant company, which cannot be accepted
and ought not to have been accepted. The appellant is not a simple or
rustic illiterate person but a Private Limited Company managed by
educated businessmen, who know very well where their interest lies.
The litigant is to be vigilant and pursue his case diligently on all the
hearings. If the litigant does not appear in the court and leaves the
case at the mercy of his counsel without caring as to what different
frivolous pleas/defences being taken by his counsel for adjournments
is bound to suffer. If the litigant does not turn up to obtain the copies
of judgment and orders of the court so as to find out what orders are
passed by the court is liable to bear the consequences." The Apex
Court in the case of Hameed Joharan v. Abdul Salam, (2001) 7
SCC 573, held that "........It cannot but be the general policy of our
law to use the legal diligence and this has been the consistent legal
theory from the ancient times: even the doctrine of prescription in
Roman law prescribes such a concept of legal diligence and since its
incorporation therein, the doctrine has always been favoured rather
than claiming disfavour. Law courts never tolerate an indolent litigant
CM (M) No.363/2018 Page 5 of 6
since delay defeats equity - the Latin maxim vigilantibus et non
dormientibus jura subveniunt (the law assists those who are indolent).
As a matter of fact, lapse of time is a species for forfeiture of
rights......""
10. Even otherwise, the limitation to file application to set aside ex-
parte judgment and decree under Article 123 of the Limitation Act,
1963 is 30 days from the date of decree. No application for
condonation of delay was filed before the Trial Court along with the
application under Order IX Rule 13 CPC.
11. Having viewed this petition from all possible angles, this court
does not find any merit in this petition. The petition and application,
being CM No. 12627/2018, are dismissed accordingly with no orders
as to costs.
VINOD GOEL, J.
OCTOBER 30, 2018
p'ma
