Delhi District Court
Shehnaz Begum & Ors vs Ram Sudhar & Ors on 23 February, 2007
Ved Parkash v. United India Ass. Co. Ltd.
IN THE COURT OF SH A.S. JAYACHANDRA
PO : MACT : KKD : DELHI
DATE OF FILING : 04.09.2006
ARGUMENTS CONCLUDED ON 14.02.2007
DISPOSED ON 21.02.2007
SUIT No. 319/02 (DD ON 26.05.2003)
IN THE MATTER OF : -
Shehnaz Begum & Ors. .................Petitioners
versus
Ram Sudhar & Ors. ..............Respondents
Applicant : Ved Parkash S/o Dal Chand R/o Village Harola, G.B. Nagar,
Sector-3, Noida, UP (Respondent number 2 in the main petition)
ORDER
1. By this order, I am disposing of the petition filed by the second respondent under Order 9 Rule 13 CPC, wherein he prays for setting aside the award dated 26.05.03, passed by my Ld. Predecessor in suit number 319/02.
2. In the petition it was stated that he being respondent number 2 in the main petition was served with notices and he filed his written statement also. He was represented by one Counsel by name Sh. C.S. Chaudhary. It is further stated that after filing of the WS, the said Advocate advised him that his presence was no more required in the proceedings and therefore, the present applicant remained 1/5 Ved Parkash v. United India Ass. Co. Ltd.
unrepresented. However, he was in contact with his Counsel. He further came to know that on 14.08.2006, that certain officials from the Tehsil told him regarding the execution proceedings in E.P. No. 141/04. The next day he contacted his Counsel and he did not properly respond. Thereafter he engaged another Counsel through whom he came to know that an award was passed on 26.05.03. The non-appearance of respondent number 2 is the bona-fide mistake based on the legal advise which was wrong. It is further stated that respondent number 1 in the main suit had a valid D/L and he obtained a certified copy from the MLO. In the result, it is stated that ex-parte decree which came to be passed for the negligence on the part of the previous counsel be set aside.
3. On this application, notices were ordered to the (respondent number 3) United India Ins. Co. since this is a dispute inter-se between the insurer and the owner of the vehicle. The Ins. Co. had filed execution proceeding in E.P. No. 141/04 where RC was issued against the owner. Upon appearance, the Ins. Co. contended that the decree is not liable to be set aside since the respondent number 2 was very much aware of the proceedings and respondent number 2 had appeared and filed the WS also. I have called for the original records in MACT No. 319/02. From the record I find that on 19.07.99, the respondent number 2 had filed the WS. He was represented by Counsel. On 11.03.2002, none appeared for R-1 and R-2 and my Ld. Predecessor had proceeded ex-parte against them. Thereafter the respondents 1 and 2 never took interest to defend their case. This 2/5 Ved Parkash v. United India Ass. Co. Ltd.
shows that the respondent number 2 was callous and indolent towards the court proceedings. The opponent Ins. Co. contended that the petition itself is not maintainable U/o 9 Rule 13 CPC since the judgment and the award can not be treated as ex-parte in nature.
4. Ld. Counsel for the petitioner relied on the following rulings :
1) Sagayam Engineering Works v. M/s Srivastva Tube Corporation AIR 1989 Mad. 237 ;
2) Bank of India v. Mehta Brothers & Ors. AIR 1991 Delhi 194 ;
3) Shyam Lal Dhar v. Ply Board Industries AIR 1981 J & K 95 ;
4) Kamakshi v. Jugraj Jain AIR 1993 Mad. 21 ;
5) MP Nrayan v. Sudha Devi AIR 1986 Cal. 256 at 260 ;
6) Gujarat Electricity Board v. Patel Shankar Bhai Durgada 2003 (5) AIR 115
at 117 (Guj.) ;
5. I have carefully gone through the above said rulings. In Sagayam
Engineering (supra), the Madras High Court held that the Courts should be liberal in condoning the delay and for the fault of the Advocate, the parties should not be deprived of a chance to defend. In Bank Of India (supra), our Hon'ble High Court held that in the case where the default of appearance by a lawyer continuing on all subsequent dates and the defendant remaining under a belief that his case was being conducted all along by the lawyer resulting in ex-parte decree and further the defendant upon knowledge taking steps is a sufficient ground to set aside the 3/5 Ved Parkash v. United India Ass. Co. Ltd.
ex-parte decree and for condonation of delay. In such circumstances, it is to be held that there is a sufficient cause. The other rulings are also to the same effect.
6. The only question now arises for consideration in this application is whether the respondent number 2, the applicant herein has made out a sufficient cause for non-appearance after 11.03.2002. It is very easy for a party to impute negligence or default on the part of his Counsel. The present application is not supported by any allegations against the earlier Counsel. The parties have also an equal role for proper representation throughout the proceedings and they can not shirk their duties while facing litigation in the court of law by shifting their responsibilities on their Counsel. The respondent number 2 ought to have led the evidence which he had not done. So the placing of ex-parte is justified. However, considering the facts of the case where this respondent number 2 submits that he had a valid D/L at the time of accident and the dispute being inter-se between the insured and the insurer and further considering that my Ld. Predecessor had opined that respondent number 1 was not having a valid D/L, I find that if an opportunity is given to respondent number 2 to prove his stand, no prejudice would be caused to the Ins. Co. At the same time considering the indolence shown by the respondent number 2, he is liable to costs. Ld. Counsel for the Ins. Co. submits that apart from costs, the insured be directed to give security to the award amount. Hence, the following order : 7. 4/5
Ved Parkash v. United India Ass. Co. Ltd.
ORDER The application U/o 9 Rule 13 CPC is allowed. The operation part of the award as regards the liability in MACT No. 319/02 (DD : 26.05.03) stands suspended. Consequently, the execution petition filed by the Ins. Co. is kept in abeyance subject to the applicant depositing a sum of Rs. 6,000/- as costs payable to the Ins. Co. by way of DD by the next date and further the applicant-second respondent is directed to give security to the extent of 50 % of the amount sought to be executed.
Put up for evidence of respondent number 2 by 31.05.07. ANNOUNCED IN THE OPEN COURT ON THE 22nd DAY OF FEBRUARY, 2007 (A.S. JAYACHANDRA) PO : MACT / KKD / DELHI 5/5