* HIGH COURT OF DELHI : NEW DELHI
FAO No.239/1992 & CM No. 3265/1992
% Judgment reserved on: 27th October, 2009
Judgment delivered on: 5th November, 2009
1. M/s Dubey Builders & Industries,
2, Kanal Raod, Jammu,
Through its partner Sh. Pawan Kumar.
2. Shri Bipan Sharma
S/o Sh. Nek Ram,
R/o 61/C/CD, Gandhi Nagar,
Jammu.
....Appellants
Through: Mr. Peeyoosh Kalra,
Adv.
Versus
Sh. Birdh Raj Bhandari,
S/o Late Balwant Raj Bhandari,
R/o 16, Netaji Subhash Raod,
Calcutta.
....Respondent.
Through: Mr. Rana Mukharjee
with Mr. I. Ghosh and Sandeep
Mahapatra, Advs.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
FAO No.239/1992 Page 1 of 15
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
In this appeal, there is challenge to order dated
21st November, 1992, passed by Additional District
Judge, Delhi. Vide impugned order, application under
Order 9 rule 13 of the Code of Civil Procedure (for
short as „Code‟) filed by appellants was dismissed.
2. Respondent herein, filed suit for possession and
mandatory injunction against the appellants. Initially,
suit was contested by appellants who filed their written
statements. On 20th November, 1991, matter was
adjourned to 6th February, 1992 for arguments on
injunction application as well as for documents,
admission/denial and issues. On that day only counsel
for respondent appeared, while none was present on
behalf of appellants. After waiting till 2.30 P.M,
FAO No.239/1992 Page 2 of 15
appellants were proceeded ex parte. Vide judgment,
dated 30th March, 1992, suit was decreed ex parte, in
favour of respondent. On 6th May, 1992, appellants
filed application under Order 9 Rule 13 of the Code, for
setting aside ex parte decree dated 30th March, 1992.
After recording evidence, trial court dismissed the
application.
3. It is contended by learned counsel for appellants
that appellants are resident of Jammu and their earlier
counsel did not inform them about the date of hearing.
When appellant came to Delhi, on contacting his
advocate, he came to know that matter has already
been decided ex parte against them. Appellant
engaged another counsel and thereafter, filed the
present application. The counsel noted wrong date and
did not inform them.
4. It is also contended that date of knowledge of
passing of ex parte decree is 4th May, 1992 and if this
date is taken as date of knowledge, then present
application is not time barred. It is also argued that
FAO No.239/1992 Page 3 of 15
for mistake of counsel, appellants cannot suffer and
there are sufficient grounds for setting aside ex parte
decree.
5. On the other hand, it is contended by learned
counsel for respondent that on 6th February, 1992
matter was listed for admission/denial also. On that
date, appellant was supposed to be present. It is
further contended that present application is
hopelessly time barred, as ex parte decree was passed
on 30th March, 1992 while application for setting aside
the same was filed only on 6th May, 1992.
6. Other contention is that, there are contradictions
in the averments made in the application, as well as in
the evidence given by the appellant and earlier
counsel. So, no ground is made out for setting aside ex
parte decree. In support, learned counsel for
respondent relied upon Salil Dutta Vs. T. M. And M.
C. Private Ltd. (1993) 2 Supreme Court Cases
185. In this case it was observed:
FAO No.239/1992 Page 4 of 15
“The advocate is the agent of the party.
His acts and statements, made within
the limits of authority given to him, are
the acts and statements of the principal
i.e. the party who engaged him. It is
true that in certain situations, the court
may, in the interest of justice, set aside
a dismissal order or an ex parte decree
notwithstanding the negligence and/or
misdemeanor of the advocate where it
finds that the client was an innocent
litigant but there is no such absolute
rule that a party can disown its
advocate at any time and seek relief.
No such absolute immunity can be
recognised. Such an absolute rule
would make the working of the system
extremely difficult.”
7. Grounds for non appearance on the date of
hearing have been mentioned in para 5 and 6 of the
application, which read as under:
“5. That the defendant no. 2 came to
Delhi on 4.5.1992 and met his counsel
and enquired about the date of hearing
of the case, the counsel was unable to
tell the next date then the defendant no.
2 made enquiry from the staff of this
Hon‟ble Court and came to know that
the suit was decreed exparte on
30.3.1992. Thereafter the defendant
no. 2 engaged the present counsel who
inspected the case file hence the
present application.
FAO No.239/1992 Page 5 of 15
6. That the absence of the defendants
on the adjourned date i.e. 6.2.1992 was
for the above mentioned reasons. The
absence was bonafide and unintentional
and was for the reasons that the
learned counsel for the defendants
never informed the defendants
regarding the date of hearing and never
required the defendants to be present
in court.”
8. As per these averments, appellant no. 2 came to
Delhi on 4th May, 1992 and met his counsel and
enquired about the date of hearing but the counsel was
unable to tell the next date. It was only on enquiry
made from the staff of the Court, appellant no. 2 came
to know that the suit was decreed ex parte on 30th
March, 1992.
9. On the other hand, previous counsel of appellants
Sh. Ajay Kumar (AW-2) in his deposition stated that he
appeared on the last date of hearing i.e. 20th
November, 1991 and noted next date of hearing in his
diary as 6th May, 1992. He realized his mistake in
noting a wrong date only when his client had informed
him on 5th May, 1992.
FAO No.239/1992 Page 6 of 15
10. In cross-examination, AW-2 stated that Mr. Pawan
Kumar (who is partner of appellant no. 1) was
contacting him on behalf of appellants. Appellants
contacted him lastly in May, 1992. He further stated
that appellants contacted him on 4th May, 1992 and he
was not aware about the progress of the case. When
appellant came to know on 5th May, 1992 that ex parte
has already been passed, then he was informed
accordingly. AW-2 further stated that appellants on
4th / 5th May, 1992 did not contact him personally but
contacted on telephone.
11. Statement of Sh. Ajay Kumar (AW-2), runs
contrary to the averments made in para 5 of the
application, as AW-2 states that appellant came to
know on 5th May, 1992 that the ex parte has already
been passed and then he (AW-2) was informed. In the
same breath, this witness states that appellants on 4th
/5th May, 1992, did not contact him personally but
contacted on phone.
FAO No.239/1992 Page 7 of 15
12. On the other hand, in para 5 of the application it
is stated that on 4th May, 1992, appellant no.2 came to
Delhi and met his counsel and enquired about the date
of hearing. In cross-examination AW-1 (appellant no.
2) categorically stated that after 4th May, 1992 he did
not meet his counsel. Thus, there are contradictions in
the statements of AW-1 and AW-2.
13. In entire application it is no where stated as to on
which date, appellant no. 2 made enquiry from the
staff of Court and on which date he came to know that
the suit was decreed ex parte on 30th March, 1992.
14. AW-1 Sh. Vipin Sharma (appellant no.2) in
examination-in-chief does not state at all about
meeting his lawyer on 4th May, 1992. On the other
hand, he states that ” when he came to Delhi on 4th
May, 1992, he came to know that an ex parte order has
been passed against them.” Thereafter, he came to
know from the Court that a decree has been passed
against them.
FAO No.239/1992 Page 8 of 15
15. AW-1 is silent about meeting his counsel (AW-2)
nor AW-1 in his entire statement stated that he
contacted his counsel on telephone, either on 4th or 5th
May, 1992.
16. Trial court in this regard observed;
“Considering the submissions made in
the application under Order 9 Rule 13
CPC and the evidence of the applicant,
it appears that there are some material
contradictions. In para 5 of the
application it is stated that the
defendant no. 2 met his counsel and
inquired about the date of hearing of
the case. The counsel as pleaded, was
unable to tell the next date. The
statement of the counsel as AW-2 about
the wrong noting of the date in his diary
is thus in contradiction to the statement
in para 5 of the application and is
beyond pleadings. The application
under Order 9 Rule 13 CPC is based on
the assurance of the counsel as
contained in para 3 and 4 of the
application that he will continue to
inform the defendants about the
progress of the case. However, the
counsel states a different story of
noting the wrong date. It is not pleaded
in the application. This fact is also
belied when there is specific statement
that the defendant no. 2 met his counselFAO No.239/1992 Page 9 of 15
on 4.5.1992. But not on telephone as
stated by the counsel itself as AW-2.”
17. The case of appellants does not appear to be
convincing at all. Wrong noting of date by the counsel,
is a very lame excuse and not much relevance can be
placed on it. Appellants have put entire blame on their
previous counsel. However, considering the
circumstances of the case, it cannot be said that
appellants acted diligently either.
18. Sh. Ajay Kumar (AW-2), no where states that he
assured the appellants, that they should not appear on
each date and their interest will be looked after by
him. Admittedly, on 6th February, 1992 matter was
fixed for the purpose of admission/denial and for this
purpose, parties are required to be present in person.
19. Another interesting feature in this case is that, as
per statement of AW-1 (appellant no. 2), his brother
Pawan Dubey (partner of appellant no.1) was dealing
with his counsel. There is no mention of this fact in the
application. It is nowhere mentioned in the application,
FAO No.239/1992 Page 10 of 15
as to what was the next date of hearing as noted by
Pawan Dubey when, admittedly he (Pawan Dubey) was
dealing with the counsel and was contacting the
counsel.
20. Rule 13 of Order 9 of Code reads as under:
“Rule-13 Setting aside decree ex
parte against defendant- In any case
in which a decree is passed ex parte
against a defendant, he may apply to
the Court by which the decree was
passed for an order to set it aside; and
if he satisfies the Court that the
summons was not duly served, or that
he was prevented by any sufficient
cause from appearing when the suit
was called on for hearing, the Court
shall make an order setting aside the
decree as against him upon such terms
as to costs, payment into Court or
otherwise as it thinks fit, and shall
appoint a day for proceeding with the
suit:
Provided that where the decree is of
such a nature that it cannot be set aside
as against such defendant only it may
be set aside as against all or any of the
other defendants also.
[Provided further that no Court shall set
aside a decree passed ex parte merely
on the ground that there has been an
irregularity in the service of summons,
if it is satisfied that the defendant hadFAO No.239/1992 Page 11 of 15
notice of the date of hearing and had
sufficient time to appear and answer
the plaintiff‟s claim.]
[Explanation-Where there has been an
appeal against a decree passed ex parte
under this rule, and the appeal has
been disposed of on any ground other
than the ground that the appellant has
withdrawn the appeal, no application
shall lie under this rule for setting aside
that ex parte decree]”
21. It is well settled that “sufficient cause” as per this
provision, for non appearance in each case, is a
question of fact. This Court in New Bank of India
Vs.M/s. Marvels (India): 93(2001)DLT558, held;
“No doubt the words “sufficient
cause” should receive liberal
construction so as to advance
substantial justice. However when it
is found that the applicants were
most negligent in defending the case
and their non-action and want of
bonafide are clearly imputable, the
Court would not help such a party.
After all “sufficient cause” is an
elastic expression for which no hard
and fast guide-lines can be given and
Court has to decide on the facts of
each case as to whether the
defendant who has suffered ex-parte
decree has been able to satisfactorily
show sufficient cause for non-
appearance and in examining thisFAO No.239/1992 Page 12 of 15
aspect cumulative effect of all the
relevant factors is to be seen.”
22. Appellants in the present case, have taken the
court proceedings very casually. It is not that
appellants are illiterate or ignorant villagers. Since,
Pawan Dubey (partner of appellant no. 1) and brother
of appellant no. 2, was pursuing the matter and
contacting the counsel, thus appellants are not
justified in shifting the entire blame on their counsel.
23. In Indian Sewing Machines Co. Pvt. Ltd. Vs.
Sansar Machine Ltd. and Anr., 56 (1994) Delhi
Law Times 45, it was observed;
“The question to be examined is
whether the responsibility of the
defendants as a litigant comes to an end
merely by engaging a counsel and
should not a litigant show diligence on
his part.”
24. In Ravinder Kaur Vs. Ashok Kumar and Anr.,
(2003) 8 Supreme Court Cases 289, it has been
laid down that;
FAO No.239/1992 Page 13 of 15
“Courts of law should be careful enough
to see through such diabolical plans of
the judgment debtors to deny the
decree holders the fruits of the decree
obtained by them. These type of errors
on the part of the judicial forums only
encourage frivolous and cantankerous
litigations causing laws delay and
bringing bad name to the judicial
system”.
25. In view of the above discussion, no ambiguity or
illegality is there in the impugned order. Present
appeal is most bogus and frivolous one and has been
filed just to delay the proceedings. Appellants have
succeeded in delaying the execution of decree for more
than 17 years. Under these circumstances, this appeal
is dismissed with costs of Rs. 30,000/- (Thirty
Thousand Only).
26. Appellants are directed to deposit the costs with
Registrar General of this Court within one month from
today, failing which the same shall be recovered in
accordance with law.
27. Trial court record be sent back.
28. List for compliance on 10th December, 2009.
FAO No.239/1992 Page 14 of 15
CM NO. 3265/1992
29. Dismissed being infructuous.
5th November , 2009 V.B.GUPTA, J.
bhatti
FAO No.239/1992 Page 15 of 15