Delhi District Court
Ruchika Kohli vs Paramjeet Singh on 20 January, 2014
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT): SAKET NEW DELHI
RCA No. 20/2013
ID Nos: 02406C0192732013
Ruchika Kohli
w/o Mr. Anul Kohli
R/o 25D, MIG Flat,
Shiekh Sarai, PhaseI
New Delhi17. .... Appellant
Versus
Paramjeet Singh
s/o Sh. Amrik Singh
R/o L22B, Malviya Nagar,
New Delhi17. .... Respondent
Instituted on: 25.07.2013
Judgment reserved on: 20.01.2014
Judgment pronounced on:20.01.2014
J U D G M E N T
1. The appellant/applicant has come up before this court to challenge the judgment dated 22.05.2013 passed by Ms. Shivani Chauhan, Civil Judge04, Central, Tis Hazari Courts on the file of civil Suit RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 1 of 15 No. 211/2012 (2007), whereby on the plaint of the respondent herein, a decree was passed for possession of property no. 25D, MIG Flat, Sheikh Sarai, PhaseI, New Delhi 110017 (as shown in the site plan Ex. PW 1/19), recovery of rent at Rs. 8500/ for the period 15.02.2006 to 01.02.2007 and mesne profits/damages at the rate of Rs. 10200/ per month with effect from 02.02.2007 till the date of actual handing over of the vacant possession of the demised premises, giving adjustment for the money already paid, besides giving certain directions about investigation into the element of forgery respecting certain documents tendered during the trial by the applicant/appellant, who faced the said proceedings as the defendant.
2. The appeal against judgment dated 22.05.2013 was presented on 24.07.2013 and, thus, beyond the period of limitation. It is, thus, accompanied by application under Section 5 read with Section 17 of Limitation Act, read with Section 151 CPC seeking condonation of delay.
3. The application for condonation of delay has been seriously contested by the respondent herein by way of reply and on the basis of record.
4. I have heard Sh. Abhinav Bajaj, advocate for the RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 2 of 15 appellant/applicant and Sh. Nagesh Kapoor, advocate for the respondent. The counsel on both sides took me through the record during the course of hearing.
5. For the purposes of examining the contentions raised in the application for condonation of delay, it is necessary to refer to some of the proceedings that were recorded before the trial court.
6. The civil suit which led to the impugned judgment being passed was preferred by the respondent (hereinafter referred to "decree holder)" on 02.01.2007. It was contested by the appellant/applicant (hereinafter referred to "judgment debtor") by way of written statement submitted on 25.09.2008. It has been conceded at the bar that, during the hearing, initially the judgment debtor (J.D.) was proceeded exparte in which proceedings the matter was heard leading to exparte judgment and decree passed by Sh. Sidharth Mathur, Civil Judge, Delhi on 16.08.2007. The J.D. later moved an application under Order 9 Rule 13 CPC which came to be allowed vide order dated 28.07.2008 whereafter the matter was proceeded with further.
7. On the basis of pleadings, issues were settled on 15.10.2008 and 21.01.2009. The decree holder (plaintiff) led evidence. For assisting her, the judgment debtor had engaged Sh.Vivek Kishore and Ms. RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 3 of 15 Ruchi Kohli, advocates, who had submitted vakalatnama executed on 08.01.2008. The record would show that the counsel thus engaged appeared on the relevant date and crossexamined the witnesses for the plaintiff. The plaintiff's evidence was closed on 20.07.2011. Thereafter, the matter was adjourned for evidence of the defendant (J.D.) for which proceedings were to commence with effect from 17.08.2011.
8. The record would also show that on 24.09.2011, the J.D./defendant appeared as her own witness (DW1) along with her counsel and was examined. The matter was adjourned for crossexamination to 03.12.2011. On 03.12.2011, the defendant/applicant (DW1) alone was present. She sought the matter to be passed over as her counsel was on his way. Later, the counsel did appear but on account of absence on behalf of the opposite party, the matter was adjourned to 25.02.2012. On 25.02.2012, none appeared for the applicant/defendant at initial stage. The matter was kept in wait by the civil judge. Around the noon time, husband of the applicant appeared and sought adjournment on the ground that she was not well and, therefore, not available.
9. On the next date 24.03.2012, the applicant appeared in person. The proceedings recorded would indicate that her counsel was not RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 4 of 15 present. She underwent part crossexamination but then on the joint request of both sides, the matter was referred to mediation centre for exploring the possibility of settlement. The case was adjourned by the civil judge to 07.07.2012 for report about the settlement or further crossexamination of the defendant. It is clear that no settlement took place before mediation centre and, thus, the parties returned to the court.
10.On 24.07.2012, the applicant/defendant was again absent. The matter was kept in wait for sufficiently long period. Though the civil judge could have proceeded exparte against the applicant, she decided to give one last and final opportunity, subject to costs that were imposed adding the caution that in case of default, the defendant evidence would close for which purpose the matter was adjourned to 10.10.2012.
11. On 10.10.2012, the applicant underwent further part cross examination as DW1 and the matter was adjourned to 05.01.2013.
12.On the said next date, 05.01.2013, the applicant as DW1 was examined and thereafter discharged.
13.The proceedings recorded by the civil judge on the aforesaid date need to be noted in entirety. The same read as under: "05.01.2013 RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 5 of 15 Present: Sh. Nagesh Kapoor, ld. counsel for plaintiff.
Defendant in person.
Cost of Rs. 2000/ paid to the plaintiff.
DW1 crossexamined at length and discharged. DW1 had not been cooperative during cross examination by giving evasive replies to the answers put to her. At one stage, she was seen seeking the assistance/answers from her husband who is present with her in the court. The husband was asked to remain outside the court room while the witness was under examination.
No list of witnesses has been submitted by the defendant. However, she states that she has more witnesses to examine in support of her defence. It is submitted by the defendant that she is unable to engage counsel as it would involve financial implication. The defendant is made aware about her right to free legal aid and advised to visit DLSA office if she so desires.
In the interest of justice, one last and final opportunity is given to the defendant to lead further evidence with advance copy of the affidavit 10 days before the next date of hearing, failing which no further witnesses to be examined in defence.
Now to come up on 16.03.2013 for DE."
14. It needs to be pertinently noted that, from the above recorded submissions it is clear that the counsel Mr. Vivek Kishore and Ruchi Kohli, who had been engaged on 08.01.2012 by the RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 6 of 15 applicant/J.D. had apparently abandoned the brief and the applicant/J.D. was no longer dependent on them for her defence in the civil suit. She had also made it clear to the Civil Judge that she was unable to engage any other counsel of her own because of financial constraints. Though she was duly informed that the possibility of she being provided counsel at the State's expenses from Legal Services Authority, the subsequent proceedings would abundantly demonstrate that she never took resort to the said possibility at any stage.
15.On 16.03.2013, the counsel for the applicant/J.D. did not appear. Instead, her husband represented her. The case was taken up four times on 16.03.2013. The proceedings recorded need to be noted at length: "16.03.2013 Present: Sh. Nagesh Kapoor, Ld. counsel for plaintiff. Husband of defendant.
No DW present. Be awaited.
Sd/ At 11.00 AM Present: As before. Be awaited.
Sd/ At 12.30 PM Present: As before. Be awaited.
Sd/ RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 7 of 15 At 2.00 PM Present: As before. No DW present.
No list of witnesses has been filed on behalf of the defendant.
In the interest of justice, one last and final opportunity was given to defendant to lead evidence and to engage a counsel if she so desires. Defendant was also made aware about her right to free legal aid. More than two months time was given to defendant so as to enable her prepare her defence.
However, no affidavit of any DW has been filed as directed. No DW present. This was the last and final opportunity to the defendant to lead evidence. It appers the defendant is not interesting in leading further evidence in support of her defence. Accordingly, the right of defendant to lead further evidence stands closed.
Now to come up for final arguments on 08.04.2013.
Sd/
16. Though it is not so mentioned, the fact that the civil judge decided to keep the matter in wait implies that opportunity was being extended repeatedly to the representative of the applicant to bring further defence witnesses, if any. The fact that the applicant/JD had not shown interest in availing free legal aid has also been taken RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 8 of 15 note of in the above mentioned order whereby the defence evidence was closed.
17. The matter had been listed for final arguments to be heard on 08.04.2013. The matter appears to have been kept in wait by the civil judge for sufficiently long time. The civil judge did not close the opportunity on the said date and rather decided to show further indulgence and adjourned the matter to 06.05.2013 giving last opportunity to the defendant to address final arguments.
18.On 06.05.2013 again, the applicant/JD was present through her husband. The civil judge passed over the matter waiting for the counsel for the defendant. This would imply that some other counsel had been actually engaged for which the husband of the defendant wanted the court to wait. But then, no vakalatnama of any other advocate was filed. When the matter was taken up again in the afternoon, even the husband became elusive. Arguments on behalf of the plaintiff/DH were heard. The civil judge decided not to close opportunity even on the said date. She deferred the matter to 22.05.2013 for further arguments, if any, and for judgment, while giving liberty in the meanwhile to the applicant/JD to submit written arguments on 20.05.2013. It is clear from the record that the liberty to file written arguments was also not availed. RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 9 of 15 Thus, the judgment was passed.
19.Going by the submissions on record, it is clear that the appeal has been presented with a delay of 23 days. The certified copy of the judgment and decree was applied for on 31.05.2013 and the same was made available on 03.06.2013. The judgment having been passed on 22.05.2013, the court vacations having supervened, the time for filing the appeal would end on reopening of the courts on 01.07.2013.
20.In the application seeking condonation of delay, the applicant/JD submits, interalia, that the counsel engaged by her was not present when the matter was fixed for final arguments. She alleges that even though the matter was adjourned for several dates, her counsel failed to argue or appear on her behalf despite the fact that she was making several requests. She alleges that she had tried to contact her previous lawyer and could retrieve the case file. She alleges that she was constrained to apply for, and received, the certified copy without the help of the counsel and that the counsel having gone out of station during vacations, she was finally in a position to contact him only upon return and thereafter, the new counsel was able to draft the appeal after going through the entire record. She attributed the delay in filing of the appeal "due to RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 10 of 15 mistake/negligence of previous counsel". She also states in the application that she is a working lady and as such remains busy with her daily job and is also constrained to take care of minor child and, thus, was unable to coordinate with the new lawyer for filing the appeal in time.
21. The contentions raised in the application have been contested by the decree holder.
22.The counsel for the applicant submitted that the expression "sufficient cause" appearing in Section 5 of Limitation Act needs to be construed liberally and not to "destroy or foreclose" the right of the parties unless malafide can be shown. He argued on the strength of Ram Nath Sao @ Ram Nath Sahu & ors Vs. Gobardhan Sao & ors, [MANU/SC/0135/2002 (AIR 2002 SC 1201)] and S. Ganesharaju Vs. Narasamma [MANU/SC/ 0379/2012 (2012(4) Scale 1520] that for the default on the part of lawyer the applicant should not be made to suffer. He submitted that there has been a delay hardly of 23 days and, therefore, it deserves to be condoned.
23.Per contra, the decree holder argued through counsel that the bar of limitation creates a vested right which cannot be taken away on RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 11 of 15 frivolous pleas raised by the party in default. He argued that the proceedings recorded before the civil court amply demonstrate that the allegations of the counsel being at fault have been improperly brought in to somehow make out a case for condonation. He submitted that even though there has been sufficient time available, no complaint against the counsel (if he was actually at fault or negligent in discharging his professional duties) has been made till date before the Bar Council. Referring to Darshan Lal Dhuper Vs. Motia Rani & ors [110 (2004) DLT 516] and Pradip Kumar Chakravarty Vs. Satish Miglani [164 (2009) DLT 392], it has been submitted that the grounds for condonation of delay cannot be accepted and, thus, the application ought to be dismissed and the appeal not entertained.
24.I have given my considered thoughts to the submissions made and find substance in the objections raised by the decree holder.
25.The proceedings recorded before the civil judge particularly from the stage of the plaintiff's evidence as noted at length in the earlier part of this order clearly show that though the counsel had been engaged, his services were abandoned midway. It is not necessary to go into the reasons why the services of the counsel engaged by the applicant were dispensed with. Suffice it to observe, RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 12 of 15 particularly in light what was submitted before the civil judge on 05.01.2013, the counsel to the knowledge of the applicant was not coming for assisting her in defending the civil suit. She had told the civil judge in no uncertain manner that she was not interested in any advocate to be engaged in lieu of the advocate engaged earlier. As mentioned earlier, though a suggestion was given by the civil judge for the applicant to avail of the free legal aid from Legal Services Authority, the applicant showed disinclination.
26.In the above circumstances, to say now at this stage that the adverse judgment was suffered only because the counsel had failed to appear is clearly a figment of imagination.
27. As has been held in the case of Darshan Lal Dhuper (supra) and Pradip Kumar Chakravarty (supra), such contentions shifting the blame on to the previous lawyer cannot be accepted or acted upon in absence of any move to proceed before the disciplinary authority in the Bar Council against the concerned advocate. Similar objections on behalf of the decree holder were raised and duly noted by this court at the hearing on the application on 17.10.2013 and 05.12.2013. Despite knowing full well the law on the subject, no complaint has been lodged against the previous counsel even till date.
RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 13 of 15
28.The argument of the counsel for the applicant that the applicant was not pursuing the matter before the disciplinary authority in the Bar Council for the reason her focus primarily was on the filing of the appeal at hand is devoid of merits. The appeal having been presented on 24.07.2013, there has been sufficient time for such action to be actually initiated.
29.The fact that no action has been initiated, only reconfirms the view reached as above that the previous counsel, to the knowledge of the applicant, was never at fault. He had given up the brief and the applicant had chosen to be on her own. With such position having been taken, the move to shift the blame on to the counsel to seek condonation cannot be approved.
30.As regards the contention that the applicant is a working lady with a minor child to be taken care of, suffice it to observe that the proceedings before the civil judge, and also before this court, show that the applicant has been prosecuting her defence in the litigation, whenever required, through her husband.
31. For the forgoing reasons, the application under Section 5 of Limitation Act is found devoid of merits. It is dismissed.
32.In the result, the appeal being time barred, cannot be entertained and stands disposed of accordingly. Decree be drawn up RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 14 of 15 accordingly.
33. The trial court record along with copy of this order be sent back.
34. The file of the appeal be consigned to Record Room. Announced in open Court today on this 20th day of January, 2014. (R.K. GAUBA) District & Sessions Judge (South District) Saket/New Delhi RCA No. 20/13 Ruchika Kohli Vs. Paramjeet Singh Page 15 of 15