Rajasthan High Court - Jaipur
S.R. Battery & Electricals vs . Qureshi Oxide & Chemicals on 6 May, 2014
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER S.R. Battery & Electricals Vs. Qureshi Oxide & Chemicals (S.B. Civil Miscellaneous Appeal No.4158/2009) DATE OF ORDER: May 06, 2014 PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Mr. Deepak Sharma, for the appellant. Ms. Manju Dave, for respondent. BY THE COURT:
This miscellaneous appeal under Section 104 read with Order 43 Rule 1 CPC has been filed by the appellant-defendant-applicant (hereinafter `the defendant') against the order dated 10-7-2009 passed by Additional District Judge (Fast Track) No.2 Ajmer dismissing the application under Order 9 Rule 13 CPC for setting aside the ex-parte decree dated 13-9-2007 in favour of the respondent-non-applicant-plaintiff (hereinafter `the plaintiff') in a suit for recovery of Rs.3,11,830/-.
Heard learned counsel for the parties, and perused the impugned order dated 10-7-2009 passed by the trial court.
The facts of the case are that the plaintiff filed a money suit for recovery of an amount of Rs.3,11,830/- before the trial court on 11-8-2005. Notice on the suit was served on the defendant. Since the defendant failed to appear before trial court, on 15-10-2005 an order for ex-parte proceedings was passed by the trial court. Thereafter on 23-11-2005 the counsel for the defendant Mr.Rajeev Joshi appeared and moved an application under Order 9 Rule 7 CPC for setting aside the ex-parte order. The said application was conditionally allowed by the trial court on 23-11-2005 subject to payment of costs of Rs.300/-. However, since the defendant neither paid the amount of costs nor his counsel appeared on future dates before the trial court, the ex-parte order dated 15-10-2005 continued to stand.
The trial court then took the plaintiff's evidence, heard the plaintiff and the ex-parte judgment and decree was passed on 13-9-2007. Petition for execution of the ex-parte decree dated 13-9-2007 was filed by the plaintiff. On the execution petition the defendant was served warrants on 18-11-2008 to show cause as to why he should not be arrested.
The defendant thereupon obtained certified copies of the ex-parte decree dated 13-9-2007 and an application under Order 9 Rule 13 CPC came to be filed on 18-12-2008. An application under Section 5 of the Limitation Act was also filed in accompaniment seeking to show sufficient cause for condonation of delay in belatedly filing the application under Order 9 Rule 13 CPC. The case of the defendant was that on receiving summons in the suit he engaged Mr. Rajiv Joshi, the Advocate who moved an application for setting aside of ex-parte proceedings. It was submitted that the Advocate assured the defendant that the case will take its own time and he would call the defendant whenever his presence would be required. The defendant submitted that however the Advocate did not inform him about the order of trial court dated 23-11-2005 for paying the costs or about the further proceedings in the suit. The case of the defendant was that since the Advocate engaged by him did not contest the case properly therefore the ex-parte decree was liable to be set aside.
The application under Order 9 Rule 13 CPC was opposed by the plaintiff on various grounds.
Counsel for the defendant has submitted that Order 9 Rule 13 CPC should be liberally construed in view of the general desire of the courts that all matters should be adjudicated on merits and not ex-parte. It was submitted that in the facts obtaining, limitation was to be computed from the date of knowledge of the defendant i.e. on 18-11-2008 when the warrant in the execution petition was served on him and not from the date of the ex-parte decree dated 13-9-2007, as the defendant's counsel did not properly inform the defendant about the proceedings in the case. He further submitted that defendant should not be penalised for the mistake of the counsel. Reliance was placed on Sagayam Engineering Works Vs. Srivatsa Tube Corporation [AIR 1989 Madras 237] wherein it was held that party should not be penalised for mistake of his counsel. In case of Rafix Vs. Munshilal [AIR 1981 SC 1400] wherein the Hon'ble Supreme Court has held that a party should not suffer for misdemeanour or inaction of his counsel.
The learned trial court however considered the fact that the defendant did not approach the trial court with clean hands. Despite service of notice the defendant did not appear before the trial court. Hence on 15-10-2005 ex-parte proceedings were taken against the defendant. The ex-parte order dated 15-10-2005 was set aside by a conditional order on 23-11-2005, which condition was not fulfilled by the defendant. And the ex-parte order dated 15-10-2005 was revived. Thereafter on 17 dates the defendant did not appear before the trial court and ultimately ex-parte decree was passed on 13-9-2007. The defendant's allegation against the Advocate was disbelieved by the trial court on the basis of over-writing of dates on the Vakalat-nama. The trial court also considered the fact that warrants of execution petition were served on defendant on 18-11-2008, thereafter he obtained certified copies of the orders and the judgment and decree on 25-11-2008, but he filed the Order 9 Rule 13 application only on 18-12-2008. Therefore, the trial court dismissed the application for condonation of delay and consequently the Order 9 Rule 13 CPC application at the instance of the defendant for setting aside the ex-parte decree dated 13-9-2007. Hence, this civil miscellaneous appeal.
Heard. Considered.
The aforesaid judgment in the case of Sagayam Engineering Works Vs. Srivatsa Tube Corporation (supra) and Rafiq Vs. Munshilal (supra), to my mind, are however not apposite to the facts of the present case. In the instant case, as held by the trial court the defendant was very much aware of the proceedings of the money suit and initially he did not comply with the condition of the order dated 23-11-2005 passed by the trial court consequent to which the ex-parte order dated 15-10-2005 was revived. Thereafter in spite of receiving warrants on 18-11-2008 and obtaining certified copies of the order on 25-11-2008 he filed the Order 9 Rule 13 application only on 18-12-2008. Indulgence of the court once having been availed, the defendant ought to have been vigilant. Reckless negligence in thereafter being not present to facilitate the conduct of proceedings in the suit of the plaintiff can only be attributed to deliberation of the defendant. The judicial process cannot be stalled. Ex parte decree rightly followed against the defendant. The learned trial court has rightly not found the cause for delayed filing to be a sufficient cause both under Section 5 of the Limitation Act and under Order 9 Rule 13 CPC. Article 123 of the Limitation Act, clearly provides that an application for setting aside an ex-parte decree passed subsequent to service of summons shall be filed within 30 days. Further the defendant has wrongly levelled allegations against an Advocate, which cannot be countenanced in absence of any suitable action against such an advocate on behalf of the defendant. Advocate cannot be used as a shield in court by the litigants.
I find no merit in the lameduck argument, vacuously made about a liberal approach to Order 9 Rule 13 CPC application as if unexceptionally mandated by the Hon'ble Apex Court and/ or this court de hors the facts of a case. The discretionary power of the courts in condoning delay in taking proceedings beyond the period of limitation statutorily provided have to be exercised with reference to the facts of each case. The gross and reckless negligence of the defendant in failing to appear before the trial court in spite of receipt of summons in the suit is evident from the facts of this case as have been detailed hereinabove. The trial court has rightly found no ground for condoning the delay in filing the application under Order 9 Rule 13 CPC and dismissed the accompanying application under Section 5 of the Limitation Act. Even on merits of the application under Order 9 Rule 13 CPC, no case was made for the defendant.
The order dated 10-7-2009 passed by the trial court impugned in this appeal, in the facts of the case and state of law is a well considered order objectively analysing all facts/ evidence. Nothing erroneous or illegal can even remotely be attributed thereto. It deserves to be upheld. It is so.
There is no force in the appeal. Dismissed.
(Alok Sharma), J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.