Delhi High Court
Sh. Naresh Kumar Bansal vs Sh. Jai Narain Khatri on 25 August, 2014
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M.(M) No.769/2014
% 25th August, 2014
SH. NARESH KUMAR BANSAL ......Petitioner
Through: Mr. Akhil Mittal, Advocate with Ms.
Shiba Batra, Advocate.
VERSUS
SH. JAI NARAIN KHATRI ...... Respondent
Through: Mr. V.P. Singh, Senior Advocate with
Mr. Sandeep Khatri, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M.No.13597/2014 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
+ C.M.(M) No.769/2014 and C.M. No.13596/2014 (stay)
2. This petition under Article 227 of the Constitution of India impugns the concurrent judgment and order of the courts below; of the trial court dated 9.12.2013 and the first appellate court dated 23.5.2014 respectively; by which the application of the petitioner/defendant no.2 under CM(M) No.769/2014 Page 1 of 4 Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC) has been dismissed.
3. A reading of the impugned orders show that in the suit for declaration and injunction, which was filed against the defendants including the petitioner herein, all the defendants including the petitioner had filed a joint written statement on 22.5.2004. Thereafter, examination-in-chief of PW-1 was recorded on 14.8.2007 but cross-examination of this witness was not carried out despite opportunity right up till 4.9.2012. Consequently, opportunity to cross-examine this witness was closed by the court. The defendants including the petitioner/defendant no.2 did not appear thereafter and hence were proceeded ex parte vide order dated 24.11.2012. After the respondent/plaintiff completed his evidence, the suit was decreed by judgment and decree dated 10.5.2013.
4. The case of the petitioner/defendant no.2 was that he relied upon his Advocate and who did not properly pursue the defence and also did not contact him and consequently petitioner should not be punished for the default of his Advocate. Reliance before the court below was placed upon the judgment of the Supreme Court in the case of Rafiq and Anr. Vs. Munshi Lal and Anr. AIR 1981 SC 1400.
CM(M) No.769/2014 Page 2 of 4
5. The courts below, in my opinion, have rightly dismissed the application under Order 9 Rule 13 CPC inter alia giving the following reasons.
6. No party can for a long period of time sit in his house and not contact his Advocate or his alleged agent/common person and thereafter claim that his agent/common person and his Advocate were negligent. No doubt, the Supreme Court in the case of Rafiq and Anr. (supra) has observed that a party is entitled to rely upon his counsel, however, these observations have to be read as per the facts of each case and the ratio of the Supreme Court is not that for years and years altogether a party need not contact his counsel and thereafter claim that his counsel was guilty of negligence and that some other person on whom he relied upon did not inform him of the proceedings in the suit.
7. Learned senior counsel for the respondent/plaintiff rightly relies upon the judgment of the Supreme Court in the case of Salil Dutta Vs. T.M. & M.C. Private Ltd. JT 1993 (4) S.C. 528 to distinguish the judgment in the case of Rafiq and Anr. (supra).
8. I may state that in the present case for about nine years, as stated by learned senior counsel for the respondent/plaintiff, the petitioner/defendant no.2 did not contact his Advocate and which long CM(M) No.769/2014 Page 3 of 4 period is enough for the courts below to hold that petitioner cannot lay the blame at the fault of his Advocate or the alleged common person. Every litigant must be reasonably vigilant in pursuing his case and if negligence as is found in this case is allowed to be overlooked by the court, then, valuable vested rights which could exist in favour of the other party will be lost on a mere self-serving statement of a litigant that his counsel allegedly did not contact him.
9. I may note that the courts below have rightly noted that if according to the petitioner/defendant no.2 his Advocate was negligent, then, the petitioner/defendant no.2 should have initiated some proceedings against the Advocate and in furtherance to which I may state that at least a legal notice alleging negligence should have been sent, but none of this has been done by the petitioner/defendant no.2.
10. In view of the above, I do not find any merit in the petition and the same is therefore dismissed, leaving the parties to bear their own costs.
VALMIKI J. MEHTA, J AUGUST 25, 2014 Ne CM(M) No.769/2014 Page 4 of 4