{"id":107693,"date":"2009-11-05T00:00:00","date_gmt":"2009-11-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-dubey-builders-industries-vs-sh-birdh-raj-bhandari-on-5-november-2009"},"modified":"2017-04-26T00:06:28","modified_gmt":"2017-04-25T18:36:28","slug":"ms-dubey-builders-industries-vs-sh-birdh-raj-bhandari-on-5-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-dubey-builders-industries-vs-sh-birdh-raj-bhandari-on-5-november-2009","title":{"rendered":"M\/S Dubey Builders & Industries & … vs Sh. Birdh Raj Bhandari on 5 November, 2009"},"content":{"rendered":"
Delhi High Court<\/div>\n
M\/S Dubey Builders & Industries & … vs Sh. Birdh Raj Bhandari on 5 November, 2009<\/div>\n
Author: V.B.Gupta<\/div>\n
*      HIGH COURT OF DELHI : NEW DELHI\n\n          FAO No.239\/1992 & CM No. 3265\/1992\n\n%            Judgment reserved on: 27th October, 2009\n\n             Judgment delivered on: 5th November, 2009\n\n    1. M\/s Dubey Builders & Industries,\n       2, Kanal Raod, Jammu,\n       Through its partner Sh. Pawan Kumar.\n\n    2. Shri Bipan Sharma\n       S\/o Sh. Nek Ram,\n       R\/o 61\/C\/CD, Gandhi Nagar,\n       Jammu.\n\n\n                                           ....Appellants\n\n                   Through:      Mr. Peeyoosh Kalra,\n                                 Adv.\n\n                  Versus\n\n      Sh. Birdh Raj Bhandari,\n      S\/o Late Balwant Raj Bhandari,\n      R\/o 16, Netaji Subhash Raod,\n      Calcutta.\n\n                                         ....Respondent.\n\n                      Through: Mr. Rana Mukharjee\n                      with Mr. I. Ghosh and Sandeep\n                      Mahapatra, Advs.\n\nCoram:\n\nHON'BLE MR. JUSTICE V.B. GUPTA\n\n\n\nFAO No.239\/1992                                Page 1 of 15\n 1. Whether the Reporters of local papers may\n   be allowed to see the judgment?                    Yes\n\n2. To be referred to Reporter or not?                 Yes\n\n3. Whether the judgment should be reported\n   in the Digest?                                     Yes\n\n\n\nV.B.Gupta, J.\n<\/pre>\n
      In this appeal, there is challenge to order dated<\/p>\n
21st November, 1992, passed by Additional District<\/p>\n
Judge, Delhi. Vide impugned order, application under<\/p>\n
Order 9 rule 13 of the Code of Civil Procedure (for<\/p>\n
short as \u201eCode\u201f) filed by appellants was dismissed.<\/p>\n
2.    Respondent herein, filed suit for possession and<\/p>\n
mandatory injunction against the appellants. Initially,<\/p>\n
suit was contested by appellants who filed their written<\/p>\n
statements.       On 20th November, 1991, matter was<\/p>\n
adjourned to 6th February, 1992 for arguments on<\/p>\n
injunction application as well as for documents,<\/p>\n
admission\/denial and issues. On that day only counsel<\/p>\n
for respondent appeared, while none was present on<\/p>\n
behalf of appellants. After waiting till 2.30 P.M,<\/p>\n
FAO No.239\/1992                                Page 2 of 15<\/span>
\n appellants were proceeded ex parte. Vide judgment,<\/p>\n
dated 30th March, 1992, suit was decreed ex parte, in<\/p>\n
favour of respondent. On 6th May, 1992, appellants<\/p>\n
filed application under Order 9 Rule 13 of the Code, for<\/p>\n
setting aside ex parte decree dated 30th March, 1992.<\/p>\n
After recording evidence, trial court dismissed the<\/p>\n
application.\n<\/p>\n
3.     It is contended by learned counsel for appellants<\/p>\n
that appellants are resident of Jammu and their earlier<\/p>\n
counsel did not inform them about the date of hearing.<\/p>\n
When appellant came to Delhi, on contacting his<\/p>\n
advocate, he came to know that matter has already<\/p>\n
been     decided   ex   parte   against   them.   Appellant<\/p>\n
engaged another counsel and thereafter, filed the<\/p>\n
present application. The counsel noted wrong date and<\/p>\n
did not inform them.\n<\/p>\n
4.     It is also contended that date of knowledge of<\/p>\n
passing of ex parte decree is 4th May, 1992 and if this<\/p>\n
date is taken as date of knowledge, then present<\/p>\n
application is not time barred. It is also argued that<\/p>\n
FAO No.239\/1992                                   Page 3 of 15<\/span>
\n for mistake of counsel, appellants cannot suffer and<\/p>\n
there are sufficient grounds for setting aside ex parte<\/p>\n
decree.\n<\/p>\n
5.    On the other hand, it is contended by learned<\/p>\n
counsel for respondent that on 6th February, 1992<\/p>\n
matter was listed for admission\/denial also. On that<\/p>\n
date, appellant was supposed to be present. It is<\/p>\n
further      contended   that   present   application       is<\/p>\n
hopelessly time barred, as ex parte decree was passed<\/p>\n
on 30th March, 1992 while application for setting aside<\/p>\n
the same was filed only on 6th May, 1992.<\/p>\n
6.    Other contention is that, there are contradictions<\/p>\n
in the averments made in the application, as well as in<\/p>\n
the evidence given by the appellant and earlier<\/p>\n
counsel. So, no ground is made out for setting aside ex<\/p>\n
parte     decree.   In   support,   learned   counsel     for<\/p>\n
respondent relied upon Salil Dutta Vs. T. M. And M.<\/p>\n
C. Private Ltd. (1993) 2 Supreme Court Cases<\/p>\n
185. In this case it was observed:\n<\/p>\n
FAO No.239\/1992                                  Page 4 of 15<\/span>\n<\/p>\n
              “The advocate is the agent of the party.
\n             His acts and statements, made within
\n             the limits of authority given to him, are
\n             the acts and statements of the principal
\n             i.e. the party who engaged him. It is
\n             true that in certain situations, the court
\n             may, in the interest of justice, set aside
\n             a dismissal order or an ex parte decree
\n             notwithstanding the negligence and\/or
\n             misdemeanor of the advocate where it
\n             finds that the client was an innocent
\n             litigant but there is no such absolute
\n             rule that a party can disown its
\n             advocate at any time and seek relief.
\n             No such absolute immunity can be
\n             recognised. Such an absolute rule
\n             would make the working of the system
\n             extremely difficult.”\n<\/p><\/blockquote>\n
7.    Grounds for non appearance on the date of<\/p>\n
hearing have been mentioned in para 5 and 6 of the<\/p>\n
application, which read as under:\n<\/p>\n
             “5. That the defendant no. 2 came to
\n             Delhi on 4.5.1992 and met his counsel
\n             and enquired about the date of hearing
\n             of the case, the counsel was unable to
\n             tell the next date then the defendant no.
\n             2 made enquiry from the staff of this
\n             Hon\u201fble Court and came to know that
\n             the suit was decreed exparte on
\n             30.3.1992. Thereafter the defendant
\n             no. 2 engaged the present counsel who
\n             inspected the case file hence the
\n             present application.\n<\/p><\/blockquote>\n
FAO No.239\/1992                                   Page 5 of 15<\/span><\/p>\n
              6. That the absence of the defendants
\n             on the adjourned date i.e. 6.2.1992 was
\n             for the above mentioned reasons. The
\n             absence was bonafide and unintentional
\n             and was for the reasons that the
\n             learned counsel for the defendants
\n             never      informed   the    defendants
\n             regarding the date of hearing and never
\n             required the defendants to be present
\n             in court.”\n<\/p><\/blockquote>\n
8.    As per these averments, appellant no. 2 came to<\/p>\n
Delhi on 4th May, 1992 and met his counsel and<\/p>\n
enquired about the date of hearing but the counsel was<\/p>\n
unable to tell the next date. It was only on enquiry<\/p>\n
made from the staff of the Court, appellant no. 2 came<\/p>\n
to know that the suit was decreed                 ex parte on 30th<\/p>\n
March, 1992.\n<\/p>\n
9.    On the other hand, previous counsel of appellants<\/p>\n
Sh. Ajay Kumar (AW-2) in his deposition stated that he<\/p>\n
appeared          on    the   last   date   of   hearing   i.e.    20th<\/p>\n
November, 1991 and noted next date of hearing in his<\/p>\n
diary as 6th           May, 1992.     He realized his mistake in<\/p>\n
noting a wrong date only when his client had informed<\/p>\n
him on 5th May, 1992.\n<\/p>\n
FAO No.239\/1992                                            Page 6 of 15<\/span>\n<\/p>\n
 10. In cross-examination, AW-2 stated that Mr. Pawan<\/p>\n
Kumar (who is partner of appellant no. 1) was<\/p>\n
contacting him on behalf of appellants.          Appellants<\/p>\n
contacted him lastly in May, 1992. He further stated<\/p>\n
that appellants contacted him on 4th May, 1992 and he<\/p>\n
was not aware about the progress of the case. When<\/p>\n
appellant came to know on 5th May, 1992 that ex parte<\/p>\n
has already been passed, then he was informed<\/p>\n
accordingly.      AW-2 further stated that appellants on<\/p>\n
4th \/ 5th May, 1992 did not contact him personally but<\/p>\n
contacted on telephone.\n<\/p>\n
11. Statement       of   Sh.   Ajay   Kumar   (AW-2),    runs<\/p>\n
contrary to the averments made in para 5 of the<\/p>\n
application, as AW-2 states that appellant came to<\/p>\n
know on 5th May, 1992 that the ex parte has already<\/p>\n
been passed and then he (AW-2) was informed. In the<\/p>\n
same breath, this witness states that appellants on 4th<\/p>\n
\/5th May, 1992, did not contact him personally but<\/p>\n
contacted on phone.\n<\/p>\n
FAO No.239\/1992                                   Page 7 of 15<\/span>\n<\/p>\n
 12. On the other hand, in para 5 of the application it<\/p>\n
is stated that on 4th May, 1992, appellant no.2 came to<\/p>\n
Delhi and met his counsel and enquired about the date<\/p>\n
of hearing. In cross-examination AW-1 (appellant no.<\/p>\n
2) categorically stated that after 4th May, 1992 he did<\/p>\n
not meet his counsel. Thus, there are contradictions in<\/p>\n
the statements of AW-1 and AW-2.\n<\/p>\n
13. In entire application it is no where stated as to on<\/p>\n
which date, appellant no. 2       made enquiry from the<\/p>\n
staff of Court and on which date he came to know that<\/p>\n
the suit was decreed ex parte on 30th March, 1992.<\/p>\n
14. AW-1          Sh. Vipin   Sharma   (appellant    no.2)      in<\/p>\n
examination-in-chief      does   not   state   at   all   about<\/p>\n
meeting his lawyer on 4th May, 1992. On the other<\/p>\n
hand, he states that ” when he came to Delhi on 4th<\/p>\n
May, 1992, he came to know that an ex parte order has<\/p>\n
been passed against them.”         Thereafter, he came to<\/p>\n
know from the Court that a decree has been passed<\/p>\n
against them.\n<\/p>\n
FAO No.239\/1992                                      Page 8 of 15<\/span>\n<\/p>\n
 15. AW-1 is silent about meeting his counsel (AW-2)<\/p>\n
nor AW-1 in his entire statement stated that he<\/p>\n
contacted his counsel on telephone, either on 4th or 5th<\/p>\n
May, 1992.\n<\/p>\n
16. Trial court in this regard observed;<\/p>\n
             “Considering the submissions made in
\n             the application under Order 9 Rule 13
\n             CPC and the evidence of the applicant,
\n             it appears that there are some material
\n             contradictions.     In para 5 of the
\n             application it is stated that the
\n             defendant no. 2 met his counsel and
\n             inquired about the date of hearing of
\n             the case. The counsel as pleaded, was
\n             unable to tell the next date. The
\n             statement of the counsel as AW-2 about
\n             the wrong noting of the date in his diary
\n             is thus in contradiction to the statement
\n             in para 5 of the application and is
\n             beyond pleadings. The application
\n             under Order 9 Rule 13 CPC is based on
\n             the assurance of the counsel as
\n             contained in para 3 and 4 of the
\n             application that he will continue to
\n             inform the defendants about the
\n             progress of the case. However, the
\n             counsel states a different story of
\n             noting the wrong date. It is not pleaded
\n             in the application. This fact is also
\n             belied when there is specific statement
\n             that the defendant no. 2 met his counsel<\/p>\n
FAO No.239\/1992                                  Page 9 of 15<\/span>
\n              on 4.5.1992. But not on telephone as
\n             stated by the counsel itself as AW-2.”\n<\/p><\/blockquote>\n
17. The case of appellants does not appear to be<\/p>\n
convincing at all. Wrong noting of date by the counsel,<\/p>\n
is a very lame excuse and not much relevance can be<\/p>\n
placed on it. Appellants have put entire blame on their<\/p>\n
previous          counsel.   However,   considering     the<\/p>\n
circumstances of the case, it cannot be said that<\/p>\n
appellants acted diligently either.<\/p>\n
18. Sh. Ajay Kumar (AW-2), no where states that he<\/p>\n
assured the appellants, that they should not appear on<\/p>\n
each date and their interest will be looked after by<\/p>\n
him.    Admittedly, on 6th    February, 1992 matter was<\/p>\n
fixed for the purpose of admission\/denial and for this<\/p>\n
purpose, parties are required to be present in person.<\/p>\n
19. Another interesting feature in this case is that, as<\/p>\n
per statement of AW-1 (appellant no. 2), his brother<\/p>\n
Pawan Dubey (partner of appellant no.1) was dealing<\/p>\n
with his counsel. There is no mention of this fact in the<\/p>\n
application. It is nowhere mentioned in the application,<\/p>\n
FAO No.239\/1992                                Page 10 of 15<\/span>
\n as to what was the next date of hearing as noted by<\/p>\n
Pawan Dubey when, admittedly he (Pawan Dubey) was<\/p>\n
dealing with the counsel and was contacting the<\/p>\n
counsel.\n<\/p>\n
20. Rule 13 of Order 9 of Code reads as under:<\/p>\n
             “Rule-13 Setting aside decree ex
\n             parte against defendant- In any case
\n             in which a decree is passed ex parte
\n             against a defendant, he may apply to
\n             the Court by which the decree was
\n             passed for an order to set it aside; and
\n             if he satisfies the Court that the
\n             summons was not duly served, or that
\n             he was prevented by any sufficient
\n             cause from appearing when the suit
\n             was called on for hearing, the Court
\n             shall make an order setting aside the
\n             decree as against him upon such terms
\n             as to costs, payment into Court or
\n             otherwise as it thinks fit, and shall
\n             appoint a day for proceeding with the
\n             suit:\n<\/p><\/blockquote>\n
             Provided that where the decree is of
\n             such a nature that it cannot be set aside
\n             as against such defendant only it may
\n             be set aside as against all or any of the
\n             other defendants also.\n<\/p><\/blockquote>\n
             [Provided further that no Court shall set
\n             aside a decree passed ex parte merely
\n             on the ground that there has been an
\n             irregularity in the service of summons,
\n             if it is satisfied that the defendant had<\/p>\n
FAO No.239\/1992                                  Page 11 of 15<\/span>
\n              notice of the date of hearing and had
\n             sufficient time to appear and answer
\n             the plaintiff\u201fs claim.]
\n             [Explanation-Where there has been an
\n             appeal against a decree passed ex parte
\n             under this rule, and the appeal has
\n             been disposed of on any ground other
\n             than the ground that the appellant has
\n             withdrawn the appeal, no application
\n             shall lie under this rule for setting aside
\n             that ex parte decree]”\n<\/p><\/blockquote>\n
21. It is well settled that “sufficient cause” as per this<\/p>\n
provision, for non appearance in each case, is a<\/p>\n
question of fact. This Court in New Bank of India<\/p>\n
Vs.M\/s. Marvels (India): 93(2001)DLT558, held;<\/p>\n
            “No doubt the words “sufficient
\n            cause”    should     receive   liberal
\n            construction so as to advance
\n            substantial justice. However when it
\n            is found that the applicants were
\n            most negligent in defending the case
\n            and their non-action and want of
\n            bonafide are clearly imputable, the
\n            Court would not help such a party.
\n            After all “sufficient cause” is an
\n            elastic expression for which no hard
\n            and fast guide-lines can be given and
\n            Court has to decide on the facts of
\n            each case as to whether the
\n            defendant who has suffered ex-parte
\n            decree has been able to satisfactorily
\n            show sufficient cause for non-
\n            appearance and in examining this<\/p>\n
FAO No.239\/1992                                    Page 12 of 15<\/span>
\n             aspect cumulative effect of all the
\n            relevant factors is to be seen.”\n<\/p><\/blockquote>\n
22. Appellants in the present case, have taken the<\/p>\n
court    proceedings       very    casually.   It   is   not     that<\/p>\n
appellants are illiterate or ignorant villagers. Since,<\/p>\n
Pawan Dubey (partner of appellant no. 1) and brother<\/p>\n
of appellant no. 2, was pursuing the matter and<\/p>\n
contacting        the   counsel,   thus   appellants      are     not<\/p>\n
justified in shifting the entire blame on their counsel.<\/p>\n
23. In Indian Sewing Machines Co. Pvt. Ltd. Vs.<\/p>\n
Sansar Machine Ltd. and Anr., 56 (1994) Delhi<\/p>\n
Law Times 45, it was observed;\n<\/p>\n
             “The question to be examined is
\n             whether the responsibility of the
\n             defendants as a litigant comes to an end
\n             merely by engaging a counsel and
\n             should not a litigant show diligence on
\n             his part.”\n<\/p><\/blockquote>\n
24. In Ravinder Kaur Vs. Ashok Kumar and Anr.,<\/p>\n
(2003) 8 Supreme Court Cases 289, it has been<\/p>\n
laid down that;\n<\/p>\n
FAO No.239\/1992                                          Page 13 of 15<\/span>\n<\/p>\n
              “Courts of law should be careful enough
\n             to see through such diabolical plans of
\n             the judgment debtors to deny the
\n             decree holders the fruits of the decree
\n             obtained by them. These type of errors
\n             on the part of the judicial forums only
\n             encourage frivolous and cantankerous
\n             litigations causing laws delay and
\n             bringing bad name to the judicial
\n             system”.\n<\/p><\/blockquote>\n
25. In view of the above discussion, no ambiguity or<\/p>\n
illegality is there in the impugned order.             Present<\/p>\n
appeal is most bogus and frivolous one and has been<\/p>\n
filed just to delay the proceedings. Appellants have<\/p>\n
succeeded in delaying the execution of decree for more<\/p>\n
than 17 years. Under these circumstances, this appeal<\/p>\n
is   dismissed    with   costs   of   Rs.   30,000\/-   (Thirty<\/p>\n
Thousand Only).\n<\/p>\n
26. Appellants are directed to deposit the costs with<\/p>\n
Registrar General of this Court within one month from<\/p>\n
today, failing which the same shall be recovered in<\/p>\n
accordance with law.\n<\/p>\n
27. Trial court record be sent back.\n<\/p>\n
28. List for compliance on 10th December, 2009.<\/p>\n
FAO No.239\/1992                                    Page 14 of 15<\/span>
\n CM NO. 3265\/1992<\/p>\n
29. Dismissed being infructuous.\n<\/p>\n
5th November , 2009                V.B.GUPTA, J.\n<\/p>\n
bhatti<\/p>\n
FAO No.239\/1992                           Page 15 of 15<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court M\/S Dubey Builders & Industries & … vs Sh. Birdh Raj Bhandari on 5 November, 2009 Author: V.B.Gupta * 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-107693","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nM\/S Dubey Builders & Industries & ... vs Sh. 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