The Single Bench of the Delhi High Court in the case of Deputy Commissioner of Police & Anr. vs Smt. Neelam Rani & Ors. consisting of Justice Manoj Kumar Ohri reiterated that the expression ‘was prevented by any sufficient cause from appearing’ in O9R13 CPC must be construed liberally in the facts and circumstances of each case, especially if the explanation offered is justifiable.
Facts
By way of this appeal u/s 104 read with O43R1(d) CPC, the appellants/defendants assailed the order passed by the learned ADJ whereby application filed on behalf of the appellants under O9R13 CPC and Section 5 of Limitation Act, 1963 was dismissed.
The appellants were served with the summons of the Suit. As no written statement came to be filed, the plaintiffs led evidence and after conclusion of the trial, an ex-parte judgment came to be passed. On an execution petition being filed, the appellants received summons whereafter they preferred an application under O9R13 CPC read with Section 5 of Limitation Act resulting in passing of the impugned order.
Contentions Made
Appellant: It was contended that the Trial Court failed to appreciate that the appellants had shown sufficient cause for not appearing in the Suit as well as for condonation of delay in filing the application under O9R13 CPC. It was further contended that although SI Deshpal appeared, the Presiding Officer was on leave and as such, the officer could not understand the proceedings, resulting in failure to communicate the same to the senior officers. Regarding the dismissal of the application u/s 5 of the Limitation Act, it was contended that the application under O9R13 CPC was filed within limitation.
Respondent: It was contended that the appellants had been callous in their conduct since none appeared on their behalf in the suit despite service of summons. It was also contended that the explanation offered that SI Deshpal could not understand the proceedings and that the Government counsel appointed did not receive BTF/instructions, does not sufficiently explain as to why the appellants failed to appear on the relevant dates.
Observations of the Court
The Bench noted that a defendant who has suffered an ex-parte decree can either file a regular appeal from the decree challenging the same on merits, or alternatively, he can file an application under O9R13 CPC to seek setting aside of the decree on the ground that (i) the summons were not duly served or; (ii) the person who was served was prevented by sufficient cause from appearing in the suit when the suit was called for hearing.
While underlining the availability of remedies to defendants such as those in this case, it relied on Bhivchandra Shankar More v. Balu Gangaram More & Ors., G.P. Srivastava v. R.K. Raizada & Ors. and other decisions to reiterate that the words “was prevented by any sufficient cause from appearing” must be liberally construed to enable the court to do complete justice between the parties particularly when no negligence or inaction is imputable to the erring party. Sufficient cause for the purpose of O9R13 CPC must be construed as an elastic expression for which no hard and fast guidelines can be prescribed.
Relying on Secretary, Department of Horticulture, Chandigarh & Anr. v. Raghu Raj it opined that a party should normally not suffer on account of default or non-appearance on behalf of its counsel.
In this case, it noted that the appellants put an appearance through SI Deshpal, however, the Presiding Officer was on leave that day. The appellants did not appear on next three dates, however, they had taken sufficient steps of appointing Government counsel to represent them in the said proceedings. The counsel engaged could not appear for want of BTF and necessary instructions, resulting eventually in passing of the ex-parte judgment/decree.
Judgment
The Bench allowed the appeal and the matter was remanded back to the concerned Court for proceeding with the Suit in accordance with law.
Case: Deputy Commissioner of Police & Anr. vs Smt. Neelam Rani & Ors.
Citation: FAO 153/2022 & CM. APPL. No.25757/2022
Bench: Justice Manoj Kumar Ohri
Decided on: 14th October 2022
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