Intellectual Property Appellate Board
Cattle Remedies vs Shri Nath Garg, Prop. Bioherbs Pharma ... on 9 February, 2005
ORDER
S. Jagadeesan, J. (Chairman)
1. The rectification application filed by the applicant herein in C.O. 14/1991 stood transferred to this Board along with application and I.A. No.9749/95 filed by the first respondent herein for setting aside the ex-parte decree dated 4.9.1995 in the said C.O. and I.A. No.246/2001 for condoning the delay in filing the same.
2. Shri Ajay Sahni appeared on behalf of the applicant and Shri Ashok Mittal appeared for the first respondent in T.R.A.
3. Both counsel represent that I.A. 9749/95 for setting aside the ex-parte decree in C.O. and I.A. 246/01 for condoning the delay in filing the same must be disposed of first and depending upon the outcome of the said application, the necessity of listing the C.O. for final disposal would arise. Accordingly, I.A. No.9749/95 and I.A. 246/01 are taken up for disposal.
4. Since the first respondent herein filed the I.As, the learned counsel for the first respondent commenced the arguments. His case is that the first respondent was served with the notice in the C.O. on 22.2.1994. The ex-parte decree was passed on 4.9.1995. The I.A. 9749/95 under Order 9 Rule 13 was filed on 12.10.1995 without any petition under Section 5 of the Limitation Act on the ground that the said I.A. is within 30 days from the date of knowledge of the ex-parte decree. However, on the objection taken by the applicant herein that the limitation for filing the application under Order 9 Rule 13 starts from the date of decree, by way of abundant caution, the first respondent filed the application under Section 5 of Limitation Act on the file of the Delhi High Court in I.A. No.246/2001 on 5.12.2001. The delay was eight days.
5. The reason for his absence s well as of the counsel is that the first respondent sent the copy of the petition on 11.8.1994 to their counsel by ordinary mail with the direction to mark their appearance on his behalf but, the entire bunch of documents could not be received by the counsel and it appeared that the same might have been misplaced in transit due to the carelessness of the Postal department, with the result that the first respondent could not be represented by their counsel. Hence, the non appearance of the first respondent before the Court is due to the bonafide reason and there is no negligence on his part. Consequently, the ex-parte decree dated 4.9.1995 is to be set aside by condoning the delay in filing the petition under Order 9 Rule 13 of C.P.C. The delay is also a short one and the same is also not a deliberate one.
6. On the contrary, the learned counsel for the applicant contended that the respondent evaded service of notice in the C.O. and ultimately through the District Court, the respondent was served on 22.2.1994. After that, there were periodical adjournments of the matter and several hearings were listed. The respondent, though served with the notice had deliberately abstained from appearing before the Court either in person or through the counsel. Consequently, the ex-parte decree was passed. The petition under Order 9 Rule 13 of C.P.C. was filed without revealing the source of his knowledge about the said ex-parte decree. When the applicant raised an objection with regard to the question of limitation, the respondent filed an application under Section 5 of the Limitation Act on 6.12.2001, nearly six years after the filing of the application for setting aside the ex-parte decree. The C.O. being one for rectification, the delaying tactics played by the respondent is to their advantage and as such, the conduct of the respondent is with malafide intention to protract the proceedings. As there is no bonafide in the conduct of the respondent in delaying the proceedings, the applications filed under Section 5 of the Limitation Act as well as under Order 9 Rule 13 of C.P.C. are liable to be dismissed.
7. We gave our anxious consideration to the above contentions of both the counsel.
8. The respondent has averred in I.A. 9749/95 that on receipt of the notice of hearing in the C.O. along with the copy of the petition, he sent them to their counsel by ordinary post with the direction to mark their appearance on his behalf on the date of hearing viz., 11.8.1994. However, the entire bunch of documents was not received by the counsel and it appeared that the same might have been misplaced in transit due to the carelessness of the Postal department. The respondent could not take due care to enquire into the matter as he was quite hopeful that his counsel might have appeared before the High Court not only on 11.8.1994 but also on the further dates on which the aforesaid C.O. had been adjourned. Hence, his non appearance is not deliberate and the absence of their counsel was also due to the non receipt of instructions. The absence of both the respondent as well as the counsel being beyond their control, in the interest of justice, the ex-parte decree must be set aside. In this petition, the respondent did not mention about the date of his knowledge of the ex-parte decree as well as the source through which he came to know about the same. He also did not claim that the application under Order 9 Rule 13 of C.P.C. was filed within 30 days from the date of the knowledge. The ex-parte decree was dated 4.9.1995 and the application under Order 9 Rule 13 OF C.P.C. was filed on 12.10.1995 which is beyond the period of limitation of 30 days from the date of the decree.
9. Coming to the counter filed by the applicant, though several allegations have been made with regard to the conduct of the respondent herein attributing motive to delay the proceedings, we would confine ourselves to the cause for setting aside the ex-parte decree and the opposition for the same.
10. The fact remains that in the Civil Suit, as early as in 1992, the respondent filed their rejoinder wherein he has stated as follows:
"It is not denied that the defendant has filed the C.O. before this Hon'ble Court which is based on false and frivolous ground and the same is liable to be dismissed with cost."
The learned counsel for the respondent also does not deny the statement. But, however, he contended that the knowledge of the respondent cannot be taken as a substitute for the service of summons in the C.O. Till the service is completed in the C.O., there is no obligation on the part of the respondent to come to the Court and defend the same. Admittedly, the notice was served on 22.2.1994. Subsequently, the C.O. was adjourned to 11.8.1994, 2.9.1994, 20.10.1994, 17.11.1994, 12/1/1995, 30.1.1995, 8.3.1995, 27.4.1995, 16.5.1995, 18.5.1995, 17.7.1995, 18.7.1995, 23.8.1995 and on 4..9.1995, the ex-parte decree was passed. The respondent did not care to verify from his counsel, having forwarded the papers for the hearing of 11.8.1994. If really the respondent was interested in prosecuting the matter, especially, having knowledge about the pendency as early as 1992 and also facing the trial in another suit, some minimum diligence is expected. The inaction on the part of the respondent is nothing but not only negligence but also his malafide intention to drag on the proceedings. Hence, the respondent is not honest and sincere in prosecuting the matter.
11. Further, the petitioner has stated that the petition under Order 9 Rule 13 of C.P.C. is time barred and as such, it is liable to be dismissed. This counter was filed on 12.1.1996. Subsequently, the respondent filed an application I.A. 1582/1996 to change his counsel and the oral evidence was taken in the same. After prolonging the matter like this, the respondent filed an application under Section 5 of the Limitation Act on 3.12.2001 nearly after a lapse of five years after the receipt of the objection of the applicant. The said application was numbered I.A.246/2001. In this petition, the respondent has stated that on 20.9.1995, he came to know about the ex-parte decree dated 4.9.1995 through the affidavit filed by the applicant in the Civil Miscellaneous Writ Petition No.7235/1995. Thereafter, he contacted his counsel at Delhi to inspect the file of C.O. 14/1991 and immediately an application under Order 9 Rule 13 of C.P.C. was filed on 12.10.1995. In paragraph 11 of the affidavit in I.A. 246/2001, the respondent has stated that the fact as to how and when exactly the respondent came to know of the ex-parte decree dated 4.9.1995 could not be mentioned in the application under Order 9 Rule 13 because this fact was not within the knowledge of the counsel for the respondent at the time of moving the said application. Hence, the delay of eight days may be condoned.
12. There is no dispute that the respondent was served on 22.2.1994 in the C.O. 14/1991. The record reveals that though there is some delay on the part of the petitioner in complying with the direction of the Court, the respondent has also equally evaded the service and ultimately, the respondent was served with the notice through the District Court for the hearing dated 11.8.1994. The respondent's case is that he dispatched the bunch of papers to his counsel with a direction to file the appearance and to appear on his behalf in the C.O.14/1991. He has not given any date of dispatch of that bunch of papers to his counsel at Delhi. His further case is that after sending the papers (which must be in February, 1994 for the hearing of August, 1994), he did not make any enquiry with the counsel about the receipt of the papers and filing of the appearance. After 11.8.1994, the date of hearing, the matter was listed on several dates. The respondent, who is facing the trial in another suit having filed the rejoinder in the said suit admitting the knowledge of the pendency of C.O.14/1991, is expected to verify from the counsel as to the receipt of the bunch of papers. No prudent person, who has some knowledge about the Court procedure would keep silent after dispatching the papers to the Advocate. when the interest of the respondent is at stake, it is not wrong to expect some diligence on the part of the respondent in prosecuting the matter. For one and a half years after the dispatch of the papers, if a party to the proceedings keeps quiet without verifying from his counsel with regard to the receipt of the records and the further developments in the matter, it is nothing but a sheer negligence on the part of the respondent.
13. Even in the petition filed under Order 9 Rule 13 of C.P.C., the respondent has not mentioned about the date of knowledge and the source of the same. When the law is very clear on the question of limitation of thirty days for filing the application under Order 9 Rule 13 of C.P.C., where a party was served with the summons, it is the respondent's duty to mention the reason for the delay of eight days in filing the application for setting aside the ex-parte decree. Non mentioning of the delay and the explanation for such delay in the application of the respondent under Order 9 Rule 13 of C.P.C. itself is fatal. Having received the reply in the year 1996, at least immediately thereafter, the respondent ought to have evinced some interest in filing the application under Section 5 of the Limitation Act. Till 6.12.2001, the respondent did not care to file any application for condoning the delay. Even though the delay is eight days, it is not the matter of number of days for the Court to consider, but, it is the conduct of the person who comes before the Court beyond the period of limitation and consider whether there is any bonafide on the part of that person in approaching the Court with such delay. The Court has to see whether there was negligence, deliberate inaction or lack of bonafides on the part of the applicant seeking condonation of delay.
14. It may not be out of place to refer to some of the judgments of the Supreme Court to refresh the principles laid down therein as a guideline to draw our conclusion.
In the case of G.P. Srivastava Vs. R.K. Raizada reported in AIR 2000 SCC 1221, the Supreme Court has held as follows:
7. Under Order 9 Rule 13 C.P.C. an ex-parte decree passed against a defendant can be set aside upon satisfaction of the Court that either the summons were not duly served upon the defendant or he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. Unless 'sufficient cause' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex-parte decree. The words "was prevented by any sufficient cause from appearing must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Sufficient cause for the purpose of Order 9 Rule 13 has to be construed as elastic expression for which no hard and fast guidelines can be prescribed. The Courts have wide discretion in deciding the sufficient cause keeping in view the peculiar facts and circumstances of each case. .........".
In another case reported in (1998) 7 SCC 123 - N. Balakrishnan Vs. M. Krishnamurthy, in paragraph 9, the Supreme Court has held as follows:-
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory..........".
In paragraph 11 of the same judgment, a further discussion was followed in the following terms:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest republicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.".
and concluded in paragraph 13 as follows:-
"13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned .That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack the mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. ........"(emphasis by us)..
The same principle was enunciated in yet another judgment in the case of M.K. Prasad Vs. P. Arumugam - (2001) 6 SCC 176.
15. From the above judgments, it is clear that the Court is concerned not with the length of delay, but, the explanation offered by the applicant for the delay and whether the conduct of the applicant is bona fide one or with an intention to delay the proceedings deliberately.
16. In the case on hand, the respondent has (1) failed to establish the date of dispatch of the bunch of papers to his counsel; 2) he has failed to make any verification with the counsel about the receipt of the same for more than one and a half years after the alleged dispatch; (3) merely assumed that the counsel might have received the papers and taken care of the proceedings; (4) totally failed to make any enquiry with the counsel for more than one and a half years after dispatching the papers and also to ascertain the progress in the matter, having fully known that he has to file counter or a reply to the C.O.
17. The application under Order 9 Rule 13 was filed without mentioning the date of knowledge which is necessary to ascertain as to whether the application is well within the period of limitation. On the objection of the applicant, the respondent filed the application under Section 5 of the Limitation Act after more than five years which is deliberate without any bonafide intention. All these are to be taken together along with an incorrect statement in the petition filed under Section 5 of the Limitation Act that the respondent could not mention in the application under Order 9 Rule 13 as to how and when exactly he came to know of the ex-parte decree dated 4.9.1995 because the said fact was not to the knowledge of the counsel at the time of filing the said application. This statement, in our opinion, is incorrect, because in the same petition at paragraph 4, the respondent has stated that he came to know about the ex-parte decree through the affidavit filed by the petitioner in the Allahabad High Court on 20.9.1995. In paragraph 5 of I.A. 264/91, he has clearly stated that immediately thereafter, the respondent contacted their counsel at Delhi, who, upon instructions, inspected the file of C.O. 14/91 (wrongly mentioned as 14/95), hereafter an application under Order 9 Rule 13 was filed on 12.10.1995. From the averments in paragraph 5, it is clear that the respondent instructed his counsel to inspect the file and thereafter the application under Order 9 Rule 13 was prepared. In that case, the counsel was fully aware of the source or at least the date of the knowledge of the applicant. If the overall conduct of the respondent is taken into consideration, we have no hesitation in coming to the conclusion that there is absolutely no bonafide on the part of the respondent in prosecuting the matter and there is deliberate negligence on the part of the respondent by protracting the proceedings. Hence, we do not find any sufficient cause either for condoning the delay or for setting aside the ex-parte decree.
18. Accordingly, both I.A. 246/2001 and I.A. 9749/95 are dismissed.