Delhi District Court
Smt. Priyanka Batra vs Shri Sandeep Grover on 16 November, 2015
In the Court of Ms. Shivali Sharma : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
RCA No. 12/2013
Unique I.D. No. 02401C0601282012
In the matter of:
Smt. Priyanka Batra,
W/o Shri Vivek Batra,
R/o B22, Income Tax Colony,
Peddar Road, Mumbai
......Appellant
V E R S U S
Shri Sandeep Grover,
R/o Tower GH2, Apartment 9A,
Orchid Gardens, Suncity, Sector 54,
Gurgaon122002
......Respondent
Date of Institution : 20.12.2012
Reserved for Judgment : 16.11.2015
Date of Decision : 16.11.2015
J U D G M E N T
1. This is an appeal arising out of an order dated 18.01.2012 passed by Ld. Trial Court whereby the applications of the plaintiff dated 17.08.2011 under Order 9 Rule 4 CPC seeking restoration of the suit as well as an application dated 29.11.2011 under Section 151 CPC seeking to place on record vakalatnama of the plaintiff were dismissed. The appellant herein was the plaintiff in the original suit and the respondent was the defendant therein. For the sake of RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 1/ 13 convenience, parties shall be referred to by their nomenclature in the main suit.
2. The plaintiff had filed a suit for declaration and permanent injunction against the defendant. Vide order dated 17.04.2006, the interim application of the plaintiff under Order 39 Rule 1 & 2 CPC was dismissed. The said order was challenged before ld. Appellate Court in MCA No. 08/2006 by the plaintiff, ld. Appellate Court set aside the order dated 17.04.2006 to the extent it expressed opinion regarding the maintainability/non maintainability of the suit. The matter was remanded back to Ld. Trial Court for returning the plaint in the suit to the plaintiff and the plaintiff was directed to appear before Ld. Trial Court on 07.07.2006 at 2 PM. It was also directed that Ld. Trial Court shall fix a further date for presentation of the plaint to the Court of competent jurisdiction in case an application is moved by the plaintiff in this regard.
3. On 07.07.2006, ld. counsels for the parties appeared before Ld. Trial Court and ld. counsel for the plaintiff informed the Court that Hon'ble High Court of Delhi had stayed the operation of order dated 01.07.2006 passed by ld. Appellate Court. Since the plaintiff was unable to produce any order of stay as submitted by him, the plaint was directed to be returned to him vide order dated 28.10.2006 and the file was consigned to Record Room.
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4. In the meanwhile, vide order dated 20.09.2007, Hon'ble High Court of Delhi disposed of CM (M) No. 996 of 2006 filed by the plaintiff challenging order of ld. Appellate Court dated 01.07.2007 remanding back the matter to the ld. Appellate Court to rehear the matter confining itself to the issues raised by Ld. Trial Court while dismissing the application of the plaintiff under Order 39 Rule 1 & 2 CPC vide order dated 17.04.2006.
5. The matter came up for hearing before ld. Appellate Court and ld. Appellate Court again dismissed the appeal vide order dated 21.08.2009 on the ground that certified copy of the impugned order was not filed along with the appeal. The said order was again challenged by the plaintiff before Hon'ble High Court of Delhi by way of a petition under Article 227 being CM(M) No. 1035/2009. The said petition was disposed of vide order dated 24.09.2009 and the matter was again remanded back to ld. Appellate Court for rehearing the same on the aspect on which the matter was earlier remanded.
6. The appeal came up for hearing before First Appellate Court on 20.07.2011 whereupon instead of hearing the appeal, ld. Appellate Court directed the parties to appear before Ld. Trial Court on 02.08.2011 at 12.00 pm for disposal of an interim application filed by the defendant. The date before Ld. Trial Court was cancelled by First Appellate Court and it was also directed that if any of the RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 3/ 13 parties do not appear on the next date of hearing before Ld. Trial Court, then Ld. Trial Court may proceed under Order 9 CPC.
7. On 20.07.2011, the plaintiff could not appear before ld. Appellate Court and only clerk for the counsel had noted down the date of appearance before Ld. Trial Court. However he inadvertently noted the said date as 12.08.2011 in place of 02.08.2011.
8. On 12.08.2011, when the counsel for plaintiff appeared before Ld. Trial Court as per his diary, he could not find the matter listed in the cause list. On making specific enquiry from Reader of the Court, he came to know that that matter has already been dismissed in default for non appearance of the plaintiff on 02.08.2011.
9. Immediately, an application dated 17.08.2011 under Order 9 CPC was filed seeking restoration of the suit dismissed in default. The plaintiff also filed a review application of the order dated 20.07.2011 before ld. Appellate Court.
10. In the meanwhile, Ld. Trial Court observed that vakalatnama on behalf of the plaintiff authorizing her counsel Shri Kanwal Chaudhary, Advocate and Shri Gaurav Sharma, Advocate was not available on record, although they had continued to appear in the matter and represent the plaintiff on several previous occasions. Immediately an application under Section 151 CPC was filed by the plaintiff along with her vakalatnama in favour of her advocates RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 4/ 13 specifically ratifying that all the acts done by them on her behalf stands ratified.
11. Both the applications of the plaintiff for restoration of the suit as well as for filing the vakalatnama on record were dismissed vide impugned order.
12. The impugned order has been challenged on the ground that Ld. Trial Court had failed to appreciate the settled proposition of law that rules of procedures are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. A hyper technical view has been taken by Ld. Trial Court. It has not been appreciated that vide her application dated 29.08.2011, the plaintiff not only authorized her counsels but also ratified all the previous acts done by her counsels. It has not been appreciated that on account of a bonafide error/omission, the vakalatnama of the counsels of the plaintiff could not be placed on record. Ld. Trial Court had observed that no affidavit of the clerk of the counsel of the plaintiff has been placed on record in support of the contentions made in application under Order 9 Rule 4 CPC but had failed to appreciate that the application was supported by an affidavit of the counsel himself. While relying upon the provisions of Order 6 Rule 14 CPC, Ld. Trial Court had failed to appreciate that non filing of vakalatnama was a mere technicality and was in all probabilities a curable defect. Ld. Trial Court had failed to appreciate the merits of the case and had simply dismissed the applications in a mechanical manner on RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 5/ 13 account of technicalities. It has not been appreciated that 02.08.2011 was not the date of hearing fixed before Ld. Trial Court and rather the said date was fixed by ld. Appellate Court. The sufficient cause shown by the plaintiff for non appearance on 02.08.2011 has not been appreciated by Ld. Trial Court.
13. Along with the appeal, there is an application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal. It is alleged in the said application that there has been delay of about 24 days in filing of the appeal as the documents were sent to Bombay for signing by the plaintiff and time was taken in obtaining certified copies of various orders.
14. Another application under Section 14 of the Limitation Act has also been filed by the appellant/plaintiff alleging that inadvertently the appeal was earlier filed in Dwarka Court as the address of Naraina was mentioned in the memo of appeal. The said appeal was returned by the Dwarka Courts vide order dated 24.11.2012 and thereafter the present appeal was filed before this Court. Accordingly, the benefit of Section 14 of Limitation Act is also prayed for condonation of delay in filing of the present appeal.
15. Per contra, the appeal has been strongly opposed on behalf of the defendant. Firstly, it it alleged that an order passed on an application under Section 151 CPC is not an appealable order. Accordingly, appeal to the said extent is not maintainable. The said RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 6/ 13 portion of the order has not been challenged in any other manner and accordingly the vakalatnama of the counsels of the plaintiff has not been taken on record. Since the counsel, Shri Gaurav Sharma filing the application under Order 9 Rule 4 CPC had no authority for filing the said application on behalf of plaintiff, the application under Order 9 Rule 4 CPC itself was not maintainable. Mere appearance of a counsel before Ld. Trial Court does not give him the authority to file an application on behalf of any party. Order 3 Rule 4 CPC specifically bars the pleader to act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent. Accordingly, the application under Order 9 Rule 4 CPC filed without any authority by the plaintiff was rightly dismissed by Ld. Trial Court vide the impugned order.
16. In addition to this, as per the contents of the application under Order 9 Rule 4 CPC, it was the mistake of the clerk of counsel for the plaintiff in wrongly noting down the next date of hearing as 12.08.2011 in place of 02.08.2011. The information to the counsel on this aspect was merely hearsay. Accordingly, the application should have been supported by the affidavit of the clerk and not by an affidavit of the counsel. Moreover, the counsel for the plaintiff has not filed the copy of his diary dated 02.08.2011 to show that the matter was not noted with him for 02.08.2011.
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17. As regards the application under Section 5 of the Limitation Act, it is stated by ld. counsel for the defendant that Section 14 of the Limitation Act provides for the exclusion of the time of proceeding bonafide and in good faith in a Court without jurisdiction. However, the order of return by ld. Appellate Court in Dwarka dated 24.11.2012 clearly shows that the institution of the appeal before ld. Appellate Court in Dwarka was not bonafide and in good faith. Accordingly, the benefit of Section 14 of the Limitation Act cannot be given to the plaintiff. In these circumstances, the dismissal of both the appeal as well as the application under Section 5 and Section 14 of the Limitation Act has been prayed.
18. Submissions have been heard. Record carefully perused.
19. I shall proceed to first decide the applications under Sections 5 and 14 of the Limitation Act seeking condonation of delay in filing of the present appeal.
20. The application under Section 14 of the Limitation Act has been filed on behalf of the plaintiff seeking exclusion of time in prosecuting the appeal before the Court having no territorial jurisdiction. It is stated that the counsel for the appellant had inadvertently mentioned the address of the respondent as that of A35, Naraina Industrial Area, Phase II, New Delhi28 in the memo of parties and accordingly the appeal was filed before District South West, Dwarka Courts. The notice of the appeal was issued to the RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 8/ 13 respondent who had filed an application under Order 7 Rule 10 CPC objecting to the territorial jurisdiction of the said Court. The mistake in mentioning the address of the defendant as that of Nariana Industrial Area had occurred because the defendant had filed two suits seeking recovery of money against the plaintiff, in one of which the said address of Naraina Industrial Area was mentioned. Whie drafting the appeal, the junior counsel associated with the counsel for the plaintiff inadvertently mentioned the said address of the respondent in the memo of appeal. Inadvertently, this fact skipped the attention of the counsel. When the appeal was presented at the registry of Tis Hazari Courts, the same was handed back for filing the Dwarka courts. The plaintiff should not be made to suffer on account of negligence on account of junior associate counsel of the counsel for plaintiff.
21. In the reply to the said application, it is stated by the respondent/defendant that the address of Naraina Industrial Area as mentioned as defendant's address in the first appeal was never the address of the defendant and was deliberately mentioned by the plaintiff to avoid the service of the defendant. Even after return of the first appeal, the present appeal has been filed after a period of 23 days for which no explanation has been given by the plaintiff. Defendant had categorically denied having filed any suit giving his address as A35, Naraina Industrial Area. It is stated that filing of the suit in a Court having no territorial jurisdiction was a deliberate and conscious act of the plaintiff on account of her malafides and the RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 9/ 13 said act being devoid of any bonafides or good faith is not entitled to the benefit of Section 14 of the Limitation Act.
22. A careful perusal of order dated 24.11.2012 whereby the first appeal filed by the appellant herein being RCA No. 07/2012 was returned by ld. Senior Civil Judge, Dwarka Courts clearly shows that the ld. Court was not convinced about the bonafide mistake of the plaintiff as alleged by him in filing the appeal before a Court lacking territorial jurisdiction. The relevant portion of the said order dated 24.11.2012 is reproduced herein under for the sake of convenience:
"Admittedly, the suit was continuing in Tishazari Court in North District so I assume that the court of North District has the jurisdiction to deal with this matter and none of the party had any objection to it but there is no explanation for the purpose of filing of appeal, how the jurisdiction of the court changed. To this, the explanation tendered by the appellant is that in some other matter pending between the parties the defendant had given his address of Naraina that is why he had mentioned the address of Naraina in appeal and he was directed to file the appeal in Dwarka Courts by the registry. He also showed the memo of parties of that case, same is perused. The said matter is between M/s. ASL Graphics Ltd. Vs. Ms. Priyanka Batra and the address of Naraina i.e. A35, Naraina Industrial Area Phase II, New Delhi32 was given as the address of registered office of the company and not of its Director Sandeep Grover. Even otherwise, the issue of territorial jurisdiction is to be considered at the initial stage of the suit that is at the stage of filing and if the suit RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 10/ 13 is filed in Tishazari Court believing that the court of North District has the territorial jurisdiction then, even if the defendant changes his address during the course of proceedings that does not change the territorial jurisdiction of the court in any manner whatsoever. Hence, I am of the opinion that appellant has failed to satisfy the court that this court has jurisdiction to deal with this matter and I am unable to believe that the above mentioned legal position was not known to the counsel for the plaintiff as I do not see any occasion for changing the address of the defendant in memo of parties as no application was moved by the respondent for change of his address in the civil suit. It seems that address of defendant was changed with the particular reason best known to the appellant."
23. After perusing the said order, I have no hesitation in holding that the plaintiff has failed to show his bonafides in proceeding before a Court lacking jurisdiction. In these circumstances, he cannot be given the benefit of Section 14 of the Limitation Act. The said application is, accordingly, dismissed.
24. The result of dismissal of the application under Section 14 of the Limitation Act filed by the plaintiff is that the delay of about 8 months in filing of the present appeal remains unexplained.
25. As regards the application under Section 5 of the Limitation Act, the plaintiff has failed to explain the day to day delay in filing of RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 11/ 13 the present appeal. Neither any specific dates of applying for certified copies of the orders have been mentioned in the application nor the dates of receiving the certified copies thereof. In fact the present appeal is accompanied by an application under Section 151 CPC filed on behalf of plaintiff seeking exemption to file certified copies of the impugned judgment as well as interim applications as also annexures filed along with the appeal. More over, the first appeal filed before Dwarka Court was returned vide order dated 24.11.2012 whereas the present appeal has been filed on 21.12.2012. Even this delay remains unexplained. In these circumstances, I have no hesitation in holding that the plaintiff has failed to give sufficient cause for not preferring the appeal within the prescribed period of limitation. The application under Section 5 of the Limitation Act is, accordingly, dismissed.
26. In view of dismissal of applications under Section 5 and 14 of the Limitation Act, the present appeal deserves dismissal being barred by the period of limitation. However, since I have already heard arguments on merits as well, I deem it appropriate to give my findings on merits of the appeal as well.
27. I have carefully perused the findings and reasoning given by Ld. Trial Court in the impugned order. Although it is correct that a lenient view can be taken while considering the applications for restoration of the suit dismissed in default, however, the reasons given by Ld. Trial Court in not adopting a lenient view in the present RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 12/ 13 matter do not appear to be perverse or unreasonable. I am also in agreement with the submissions made by ld. counsel for respondent that findings on application under Section 151 CPC are not appealable. Accordingly, the impugned order to the extent it dismisses the application of plaintiff under Section 151 CPC to place on record the vakalatnama in favour of her counsel and to ratify the acts done by her counsel is not appealable and cannot be modified in the present appeal. That being so, the application of the plaintiff under Order 9 Rule 4 CPC which was signed only by Shri Gaurav Sharma, advocate and not by plaintiff cannot be said to be a duly filed application on behalf of the plaintiff and thus, cannot be considered to give any kind of relief to the plaintiff.
28. In view of the above discussions, no merit is found in the present appeal. Same is accordingly, dismissed. No order as to costs. Decree sheet be prepared accordingly.
29. The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with a copy of the judgment.
Announced in the Open Court on 16.11.2015 (Shivali Sharma) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi RCA No. 12/2013 Priyanka Batra v. Sandeep Grover Page no. 13/ 13