Delhi District Court
Smt. Dulari Devi vs . Subodh Kumar. on 23 July, 2012
IN THE COURT OF SH. RAKESH KUMAR-II, CCJ-CUM-ARC (NORTH-
WEST), ROHINI COURTS, DELHI.
M. no.25/11.
Smt. Dulari Devi Vs. Subodh Kumar.
ORDER
Vide this order I shall dispose off applications moved by the defendant no.2 namely Sh. Mainsh Mishra U/o 9 rule 13 r/w Section 151 CPC alongwith another application moved U/s 5 of Limitation Act for condonation of delay.
It is submitted that the aforesaid matter was pending disposal before this Court and finally on 26/02/2011 this Court passed an ex-parte decree / judgment in the aforesaid matter and now the execution is pending before this Court. It is stated that the defendant no.2 is tenant in the suit property and after getting notice of this Court the applicant appeared before this Court on 10/03/2010 and this Court was on leave and thereafter on the next date of hearing the applicant filed an application U/o 7 rule 11 CPC & written statement was also filed within ninety days subject to cost of Rs. 600/-.
It is stated that after receiving the copy of written statement the plaintiff took five dates to file replication and on 25/11/2010 plaintiff filed replication & copy was given and the applicant/defendant no.2 was asked to pay the cost at the double rate to the tune of Rs.1200/- but he was not able to pay that due to his financial constrains and sought more time to pay the 1/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 cost but it was not considered and the matter was fixed for 22/01/2011 and by that time the fever of the applicant deteriorated and it was a jaundice & subsequently it turned into mind fever (hapatic encepholopathy) which continued for many month as a result of which the applicant / defendant no. 2 was forced to stay at his native village Basti, UP and could not pursue the present suit due to aforesaid illness & remained at his native place.
It is stated that due to illness the applicant could not pursue his case nor paid professional charges therefore, the counsel for the applicant also stopped appearing in the present suit and thereafter by next two dates this Court passed the decree / judgment on 26/02/2011. It is stated that in the last week of September 2011 the applicant visited the premises in question and on 30/09/2011, one bailiff from this Court visited the suit property and only then the applicant came to know about the passing of the ex-parte decree/ judgment by this Court.
It is prayed to set aside the ex-parte decree dated 26/02/2011 and grant an opportunity to the applicant / defendant no.2 to contest the present matter on merits.
In another application U/s 5 of Limitation Act for condonation of delay it is submitted that defendant/ applicant could not file the application for setting aside ex-parte decree on time for medical reasons and the reasons stated above and it is prayed to condone the delay w. e. f. 27/03/2011 upto 24/11/2011 in filing accompanying application for setting aside ex-parte decree dated 26/02/2011.
Reply to this application was filed stating therein that on 2/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 07/05/2010 the defendant no.2 sought time to file the written statement and since more than 60 days had elapsed, the Predecessor of this Court in the interest of justice granted one more opportunity to the defendant no.2 to file the written statement subject to cost of Rs.600/- & adjourned the matter to 01/06/2010 and on 01/06/2010 the defendant no.2 filed the written statement but failed to pay the cost imposed upon him and the matter was adjourned for 26/07/10. On 26/07/2010 the Ld. Presiding Officer was on leave and the matter was adjourned for 03/08/2010 but no cost was paid by the defendant no.2 and on 03/08/2010 the cost was not paid and the matter was adjourned for 08/09/2010. On 08/09/2010 the defendants no.1 & 2 appeared but on said date no cost was paid and the case was adjourned for 16/10/2010 & thereafter for 25/11/2010 and on 25/11/2010 the defendant no.2 again sought time to pay the cost & taking into consideration the conduct of defendant no.2 & facts of the case, the Predecessor of this Court granted one more opportunity to the defendant no.2 subject to cost of Rs.600/- and the matter was adjourned for 20/12/2010.
It is averred that on 20/12/2010 the defendant no.2 appeared & again sought time to pay the cost and after seeing the conduct of defendant no.2 the Court passed the order not to take the written statement of defendant no.2 on record and further ordered not to consider the same in his defence and on the same date in presence of defendant no.2, the Predecessor of this Court framed the issues and adjourned the matter for plaintiff's evidence for 22/01/2011. On 22/01/2011, the defendant no.2 failed to appear and thus he was proceeded ex-parte and after recording the 3/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 evidence, the matter was adjourned for 26/02/2011 for final arguments and the suit was decreed on 26/02/2011.
It is submitted that despite various opportunities granted by this Court, the defendant no.2 did not pay the cost intentionally and got the matter adjourned from time to time with a view to linger on the matter. It is averred that the defendant has falsely alleged that he was suffering form alleged ailment from the alleged date i.e. 07/12/2010 as is clear from the medical certificate produced by the defendant no.2 on record. The medical certificate does not bear any date of issuance & the averments made in the application are contrary to the medical certificate as the defendant was very much present in the court on 20/12/2010. It is averred that the defendant no. 2 has failed to disclose any reason what to talk of sufficient reason for non- filing of the application within the stipulated period. All other averments are denied and plaintiff prayed for the dismissal of this application.
I have heard Ld. Counsel for the parties and gone through the case file carefully.
The brief facts of the case are that the premises in question was let out by the plaintiff to the defendant @ Rs.4500/- per month w. e. f. 01/06/07 in terms of rent agreement dated 13/09/07 for a period of eleven months for the purpose of residence of the said tenant as well as his associates namely Kamal Kant Dubey & Manish Kumar Mishra and the said rent agreement was duly witnessed by the defendant no.2. Later on rent agreement was again executed on 18/07/08 renewing the tenancy for further eight months commencing from 01/05/08 to 31/12/08 and the said 4/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 agreement was also witnessed by the defendant no.2 but after the expiry of the above said period the premises was not vacated by the defendant no.1 and hence the suit for possession was filed & later on suit was decreed.
By way of present application, the defendant no.2 is praying to set aside the decree dated 26/02/2011 and seeking an opportunity to contest the present matter. The defendant no.2 appeared for the first time on 21/04/2010 and an application U/o 7 rule 11 CPC was moved and the case was adjourned for 07/05/2010 and on 07/05/2010 defendant no.2 sought time to file the written statement as sixty days were passed and Ld. Predecessor of this Court granted one opportunity to the defendant no.2 to file the written statement subject to cost of Rs.600/- and adjourned the matter for 01/06/2010. On 01/06/2010 the defendant no.2 filed the written statement but previous cost of Rs.600/- was not paid and the case was adjourned for 26/07/2010 and on 26/07/2010 Ld. Predecessor of this Court was on leave and the matter was adjourned for 03/08/2010 and on 03/08/2010 no cost was paid by the defendant no.2 and matter was adjourned for 08/09/2010 and on 08/09/2010 cost was again not paid and case was adjourned for 16/10/2010 and thereafter to 25/11/2010 and on 25/11/2010 defendant no.2 again sought time to pay the cost and when the cost was not paid & seeing the conduct of the defendant no.2, Ld. Predecessor of this Court imposed further cost of Rs.600/- and the case was adjourned for 20/12/2010. On 20/12/2010 the defendant no.2 appeared and he again sought time to pay the cost and seeing the conduct of defendant no.2, Ld. Predecessor of this Court passed an order not to take on record the written statement due to 5/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 failure of defendant no.2 to pay the cost and further ordered not to consider the same in his defence. The issues were framed in this case on 20/12/2010 and case was adjourned for plaintiff's evidence. It is pertinent to mention here that throughout the proceedings, defendants remained absent & approach of the defendant no.2 was very casual and defendant no.3 was proceeded ex-parte on 08/09/2010. On 22/01/2011 the defendant no.2 failed to appear and he was proceeded ex-parte and after recording the statement of PW1, case was adjourned for 26/02/2011 for ex-parte final arguments and the suit was ultimately decreed on 26/02/2011 itself. The defendant no.2 took dates after dates just to linger on the matter.
The defendant no.2 has contended that he was suffering from various ailments from 07/12/2010 and the defendant no.2 has placed on file the medical certificate but that medical certificate does not bear any date and it is a photocopy. The medical certificate & the statement of the defendant no.2 are contrary to each other as it is clear from the order sheet that defendant no.2 was personally present in the Court on 20/12/2010. The defendant was present in the court on 20/12/2010 and in my opinion the entire para is vague for his period of illness as no date is mentioned in the medical certificate and it is not clear as from which period to which period defendant no.2 remained under treatment. In the entire application, no plausible explanation has been given by the defendant for not appearing after framing of issues and at the time of plaintiff's evidence. In the present case, the defence of the defendant no.2 was struck off due to non-payment of cost. From the perusal of the aforesaid order sheets it reveals that counsel 6/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 for the defendant no.2 as well as defendant no.2 have been prosecuting the case in a very casual manner.
It is well settled law that any application moved in order to delay the trial, it should be dealt with heavy hands and no leniency should be shown to those parties, who in order to cover up their own negligence tries to cause obstruction in the administration of jurisdiction and reference can be made to "Rajender Singh Vs. Bharat Singh & Ors." 08 September 2010 High Court of Delhi, New Delhi CM (Main) no.1140/2010 and CA no.15897/2010.
The Supreme Court in its Judgment Parimal v. Veena @ Bharti (civil appeal no.1467 of 2011) has examined the provisions of Order IX Rule 13 of the Code of Civil Procedure, 1908. Order IX Rule 13 of the CPC speaks of conditions under which an Ex-Parte Decree can be set aside. While examining the various judicial precedents on the provision, the Court held as under;
Order IX, R.13 CPC:
The aforesaid provisions read as under:
"Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as 7/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 it thinks fit, and shall appoint a day for proceeding with the suit; xx xx xx Provided further that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
It is evident from the above that an ex-parte decree against a defendant has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, the court shall not set aside the said decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court. The legislature in its wisdom, made the second proviso, mandatory in nature. Thus, it is not permissible for the court to allow the application in utter disregard of the terms and conditions incorporated in the second proviso herein.
"Sufficient Cause" is an expression which has been used in large number of Statutes. The meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary to answer the purpose intended. Therefore, word "sufficient" embraces no more than that which provides a platitude which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that party had not acted in a negligent manner or there was a want of bona fide on its part in view of the 8/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 facts and circumstances of a case or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. (Vide: Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma Chemical Industries Limited v. Gujrat Industrial Development Corporation & Another, (2010) 5 SCC 459).
In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993, this Court observed that every good cause is a sufficient cause and must offer an explanation for non-appearance. The only difference between a "good cause" and "sufficient cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a "sufficient cause".
(See also: Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors. AIR 1964 SC 1336; and Mata Din v. Narayanan, AIR 1970 SC 1953).
While deciding whether there is a sufficient cause or not, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. (Vide: State 9/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 of Bihar & Ors. v. Kameshwar Prasad & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC 100, Davinder Pal Sehgal & Anr. V. M/s. Partap Steel Rolling Mills (P) Ltd. & amp; Ors., AIR 2002 SC 451; Rm Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand & Anr. (2005) 10 SCC 127; Srei International Finance Ltd. v. Fair growth Financial Services Ltd. & Anr., (2005) 13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054).
In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a strait-jacket formula of universal application.
It is held in Mahabir Singh Vs. Subhash Chand & Ors. In civil appeal no.4881 of 2007 (Manu/SC/8048/2027) that "there exists a presumption that the official act was been done in ordinary course of business. Admittedly, an ex-parte decree was passed. Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit ex-parte. Reference can be made to "Joseph John Vs. 10/13 Dulari Devi Vs. Subodh Kumar M. no.25/11 Joseph (Man/KE/0358/2001 and M/s Krishna Continental Ltd. Vs. Balkrishan Sharma FAO no.129-130/2005 & CM No.6836/2005 it is held that there should be some extenuating circumstances justifying the condonation of delay U/s 5 of Limitation Act. It is a settled law that each days delay has to be explained and in the absence thereof, the delay cannot be condoned. In the present case in hand each day delay has not been explained. No sufficient cause has been shown and when the medical certificate is doubtful & the conduct of defendant is such which is apparent on record that he wants to delay the case, I am of the considered view that application bears no merits and the same is dismissed.
Announced in the open Court.
Dated:-23/07/2012. (Rakesh Kumar-II) CCJ-cum-ARC (North-West) Room no.216, Rohini Courts, Delhi.
11/13 Dulari Devi Vs. Subodh Kumar M. no.25/11
M. no.25/11
23/07/2012
Present: None.
Vide my separate order, applications U/o 9 rule 13 CPC and U/s 5 of Limitation Act of the defendant no.2 are dismissed. File be consigned to record room after due compliance.
(Rakesh Kumar-II)
ARC/CCJ/Rohini Courts
23/07/2012
12/13 Dulari Devi Vs. Subodh Kumar M. no.25/11
Ex no.418/11
23/07/2012
Present: None.
Vide my separate order, applications U/o 9 rule 13 CPC and U/s 5 of Limitation Act of the defendant no.2 are dismissed.
Notice to bailiff be issued for 03/08/2012.
(Rakesh Kumar-II)
ARC/CCJ/Rohini Courts
23/07/2012
13/13 Dulari Devi Vs. Subodh Kumar M. no.25/11