1. The petitioner was a defendant in a suit for recovery of
₹16,42,000/- which was decreed ex parte on 18.11.2014. An application
filed by the petitioner to set aside the ex parte decree was dismissed by both
the Courts below. The correctness of the concurrent orders is challenged in
2. The learned counsel representing the petitioner has made the
II) The defendant joined the proceedings on 31.08.2012 and
participated in the proceedings. However, it was again
proceeded against ex parte on 28.01.2014. The
defendant, being the company, took all the possible steps
to properly defend the suit. The delay should have been
2025.03.12 11:04 condoned by taking a liberal view.
3. This Court has considered the submissions of the learned
counsel representing the petitioner.
4. In fact, the First Appellate Court, upon examining the record,
has recorded the following findings:-
"13. It is a matter of record that on 03.04.2012 plaintiff
(respondent herein)instituted suit for recovery of ₹16.42 lakhs
alongwith stipulated interest and damages thereof, against the
defendant(appellant herein) and notice was ordered to be
served upon the defendant for 06.06.2012, but despite due
service, none appeared on behalf of the defendant and
defendant was proceeded against ex-parte vide order dated
06.06.2012 passed by the Court of learned ACJ(SD),
Gurugram. Then the matter was adjourned to 13.06.2012 and
then to 03.08.2012 and then to 29.08.2012 and then to
31.08.2012 and on 31.08.2012 defendant put in appearance
through counsel and one application under Order 37 Rule 3(1)
CPC read with Section 151 CPC was also moved on behalf of
defendant and then in terms of Order 37 Rule 3(4)CPC, plaintiff
was directed to serve summons on defendant in Form 4A in
Appendix B and matter came to be adjourned to 22.10.2012
and then to 26.11.2012 and then to 05.01.2013 and then to
16.03.2013 on which date reply to the aforesaid application is
reflected to have been filed. Then the matter was adjourned to
07.05.2013 and then to 19.11.2013 and then to 28.01.2014, but
on 28.01.2014, none appeared on behalf of defendant and
accordingly defendant was proceeded against ex-parte.
Thereafter, matter was adjourned to 11.07.2014 and then to
18.08.2014 and thereafter, after obtaining ex-parte evidence,
suit of the plaintiff was decreed ex-parte with costs vide
judgment/decree dated 18.11.2014. Accordingly, it comes out
that defendant had due knowledge/notice of the pending civil
DEEPAK KUMAR BHARDWAJ suit instituted against it, however it failed to pursue the matter
for the reasons best known to it."
5. It would be noticed that the defendant was given an opportunity
to prove that it was having a sufficient cause for non-appearance. It
examined AW.1 Pardeep Kumar and his evidence was recorded. The First
Appellate Court has recorded the following observations after analyzing his
evidence:-
"16......First of all, it is nowhere mentioned in the application
of the applicant/appellant as to when defendant contacted the
counsel appearing on its behalf and as to when defendant met
the Clerk of the counsel and as to when Clerk of said counsel
informed about the dismissal of the suit and pleading to that
effect in para No. 4 of the application is quite vague. Not only
this, applicant/defendant examined AW1 Pardeep Kumar who
tendered his affidavit Ex.AW1/A in evidence and reiterated the
facts in his affidavit, as para No.5 of his Affidavit is
reproduction of para No. 4 of the application and again no
specifics as to when defendant met the Clerk of counsel and as
to when said Clerk informed them about the dismissal of the
suit, are spelt out. Moreover, cross-examination of this witness
further reveal the falsity of the case set up by the
applicant/defendant, as AW1/Pardeep Kumar in his
crossexamination states that he contacted the counsel in
November-December, 2013 and thereafter he never contacted
the counsel and that he does not remember the name of the
counsel. In his further cross-examination, he quite strangely
states that he had no talk with the counsel in
NovemberDecember, 2013 as at that time he could not contact
the concerned counsel. He further states that in para No.5 of
the affidavit, he has disclosed about meeting with the Clerk of
the counsel but he did not meet the Clerk of the counsel and
then voluntarily states that one Gopal Sharma had met
him(Clerk of the counsel) and this much cross-examination of
witness of the applicant/defendant itself reveals a lot and it is
apparent on record that applicant/defendant is trying to take a
false plea, without any justification and basis. Further, it may
not be out of context to mention here that ex-parte order was
passed on 18.01.2014 and ex-parte decree was passed on
18.11.2014, however instant application has been moved after
much delay i.e. on 19.04.2016 and in the light of afore-
discussed evidence of the applicant/defendant itself, it is again
apparent that instant application was moved just to frustrate
the execution petition filed by decree-holder/plaintiff."
6. In this case, admittedly, the defendant received summons sent
by the Court. However, it failed to enter appearance, resulting into the Court
ordering ex parte proceedings on 06.06.2012. Subsequently, the company
appeared through its counsel on 31.08.2012, and continued to participate in
the proceedings upto January, 2014. Again, it absented from the proceedings.
The application for setting aside the ex parte decree was filed on
19.04.2016, but it failed to prove any sufficient cause for its absence from
the proceedings of the Court.
7. With respect to the first submission, this Court, while deciding
the revision petition, is not expected to permit the petitioner to take up a new
point which was never taken up before the Courts below.
8. With regard to the second submission, it would be noticed that
the petitioner (defendant) is a private limited company. It has all
wherewithal, namely the employees and lawyers who can be engaged. The
petitioner engaged a lawyer to continue to appear in the Court for nearly 1½
years. It is evident that AW.1 Pardeep Kumar has disclosed that he contacted
the counsel in November/December, 2013, but thereafter, he failed to
2025.03.12 11:04 contact the counsel. He even failed to disclose the name of the counsel.
9. It is evident that the petitioner was not serious in defending the
suit as it was not pursued earnestly.
10. Keeping in view the aforesaid facts, no ground is made out to
interfere with the concurrent impugned orders passed by both the Courts
below. Hence, the present revision petition is dismissed.
(Anil Kshetarpal)
Judge
March 10, 2025
"DK"
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
