Delhi District Court
Savitri Devi vs ) Heera Lal on 19 December, 2018
IN THE COURT OF SH. SIDHARTH MATHUR,
ADJ-02 (NORTH-WEST), ROHINI COURTS, DELHI.
SAVITRI DEVI .................... APPELLANT
Through
Sh. Ansar Ahmed,
Advocate.
VERSUS
1) HEERA LAL ................. RESPONDENT NO. 1
Through
Sh. B. N. Gupta,
Advocate.
2) VED PRAKASH
3) ASHOK
4) NARESH
................. RESPONDENT NO. 2 TO 4
(NOT SUMMONED)
JUDGEMENT
1. New No. : RCA No. 84-18.
2. Under Section : Regular Civil Appeal.
3. Date of Institution : 29/11/2018.
4. Date of Final Order : 19/12/2018.
5. Final Order : Dismissed.
INTRODUCTION
1) The defendant No. 2 (appellant) is objecting to the order dated 12.10.2018 whereby
dismissing her applications u/o 9 Rule 13 CPC and Section 5 Limitation Act were dismissed by the Ld. Trial Court.
The parties shall be referred with the same nomenclature, which they originally had before the Ld. Trial Court.
(RCA No. 84-18) (Page No. 1 /5 ) The plaintiff (respondent No. 1) is only one who is contesting this appeal because the remaining defendants no. 1, 3 & 4 (respondents No. 2 to 4) were not summoned since being exparte during the trial.
BRIEF FACTS
2) Let me first bring forth thee relevant developments taking place during the trial. The plaintiff filed the suit for Permanent Injunction against forcible dispossession and interference in his construction at the suit property claiming himself to be its owner vide his father's Will dated 22.06.2005.
The defendant No. 1 and 3 never appeared before the Ld. Trial Court despite their service and were accordingly proceeded exparte on 22.07.2011 The defendant No. 2 appeared in person before the Ld. Trial Court on 21.12.2011 ; was first proceeded exparte on 22.07.2011 ; then she appeared through counsel on 17.02.2012 & filed an application u/s 151 CPC for restoring her right to file the WS and was once again proceeded exparte on 07.05.2012 resulting in the dismissal of her aforesaid application for non-prosecution.
The defendant No. 4 and 5 appeared in person on 04.01.2011 and were proceeded exparte on 22.07.2011. The application of defendant No. 4 for setting aside of his exparte proceedings was allowed on 03.04.2013 but he was once again proceeded exparte on 18.07.2013.
None of the defendants filed any WS and the Ld. Trial Court decreed the suit on 05.12.2015. The defendant no. 2 then sought the recall of this decree by filing applications u/o 9 Rule 13 CPC and Section 5 Limitation Act on 25.11.2017, which were dismissed vide the impugned order.
(RCA No. 84-18) (Page No. 2 /5 )
GROUNDS OF APPEAL & FINDINGS
3) The defendant No. 2 is claiming that her previous counsel's negligence/inaction is
responsible for passing of the exparte decree, who never kept her informed about the Court proceedings while she being a layman was not able to gauge the procedural technicalities involved in a trial.
As already been observed herein above, the defendant No. 2 had appeared before the Ld. Trial Court. Meaning thereby she was aware the pendency of the suit against her. Now I have to see if her subsequent non appearance during the remainder of the trial was. sufficiently explained or not.
Blaming someone behind their back and shifting the responsibility of one's own fault is one of the most easiest task. Thats exactly what the defendant no. 2 is trying to do by blaming her previous lawyer for the exparte decree though she was equally negligent and irresponsible during the trial. Assuming for the sake of arguments that her counsel was negligent, then why did not she make any complaint against him for this misconduct. Her silence against this misconduct is deafening and must be construed against her. If the lawyer was irresponsible, then she could have moved the court directly after the lapse of the reasonable time to find out about the progress of the suit or could have also engaged a new counsel to do that for her. But she did nothing other than sitting idle in the comfort of her house and letting that suit go against her. She can not now cry foul and blame her lawyer for all that what has happened because she was an equal accomplice throughout. The Courts are meant for litigants who are diligent and not for the one's who are indolent & sleep over their rights only to wake up from their slumber after suffering an adverse order. She may have been a layman but speaking reasonably that is not reason enough to excuse her flagrant negligence. Reasonableness demanded that she should have been more vigilant so as to take timely stock of the progress of the suit instead of (RCA No. 84-18) (Page No. 3 /5 ) shifting the blame on her lawyer. If her assertions are accepted today, then it would open the flood gates whereby everybody & anybody would be able to get away for their own negligence after making unsubstantiated allegations either against the lawyer or by citing itself to be a layman. Vague allegations can not have the sanction of law. Moreover, this 'lawyer thing' seems to be an after thought to cover up her negligence when admittedly she till date has not even complained against him, which if done could have showed her bonafides.
Thus the reasoning given by the Ld. Trial court in the challenged order is perfectly apt and can not be faulted with.
4) To further bolster her claim, the defendant No. 2 stated that the decree was obtained by the plaintiff through fraud ; that the Khasra No. of the suit property & that of the defendant No. 2 are different from each other ; that demarcation of the suit property be ordered to remove this confusion ; that the plaintiff's Will dated 22.06.2005 was forged and that plaintiff ought to have impleaded his brother Babu Lal as a party before the Ld. Trial Court once the suit property admittedly belonged to their father.
The only questions that can be answered in an appeal like the present one filed against the order dismissing the applications u/o 9 Rule 13 CPC & Section 5 Limitation Act is 'whether the non-appearance of the defendant no. 2 during the trial was prevented by a sufficient cause or not' and 'whether it should be condoned or not'. The aforesaid objections are in the nature of her defence, which ought to have been raised by the defendant no. 2 by filing her WS & contesting the suit before the Ld. Trial Court. She neither filed any WS, nor appeared during the trial. In absence of any defence being raised by her before the Ld. Trial Court regarding the aforesaid contentious issues, I ought not to be delving into the same in this appeal. If I do so that would end up allowing the defendant No. 2 to promulgate her defence, whose opportunity was closed by the Ld. (RCA No. 84-18) (Page No. 4 /5 ) Trial Court while dismissing her application u/s 151 CPC for permission to file the WS. Something which can not be done directly, ought not to be allowed to be done indirectly. Thus there is no force in the aforesaid objections as well.
CONCLUSION
5) For the reasons assigned herein above, the appeal is dismissed Decree sheet be accordingly prepared.
The TCR be sent back with the copy of this order.
The Appeal File be consigned to record room after due compliance. Announced in the Open Court on 19/12/2018.
(SIDHARTH MATHUR) ADJ-02 (North-West), Rohini, Delhi.
(RCA No. 84-18) (Page No. 5 /5 )