Delhi High Court
Supreme Court Bar Association vs Mam Chand Sharma on 17 November, 2017
Author: Valmiki J.Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 449/2017
% 17th November, 2017
SUPREME COURT BAR ASSOCIATION ..... Appellant
Through: Mr. R.K. Tikku, Sr. Advocate
with Mr. Sujeet Kumar Mishra,
Advocate.
versus
MAM CHAND SHARMA ..... Respondent
Through: Mr. Sarfaraz Ahmed and
Ms.Ruchi Jain, Advocates.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. No. 41460/2017 (for delay)
1. This is an application seeking condonation of delay of 95 days in filing the appeal.
2. For the reasons stated in the application the same is allowed and the delay is condoned, subject to just exceptions.
C.M. stands disposed of.
FAO No. 449/2017 Page 1 of 5 FAO No. 449/2017 and C.M. Appl. No. 41459/2017 (for stay)
3. This First Appeal is filed under Order XLIII (1)(d) CPC impugning the order of the trial court dated 30.5.2017 by which the trial court has dismissed the application under Order IX Rule 13 CPC filed by the appellant/defendant.
4. The facts of the case are that the respondent/plaintiff filed the subject suit for recovery of Rs.6,63,591/- from the appellant/defendant on account of unpaid dues for the renovation work done. On being served appellant/defendant appeared and filed its written statement and prayed for dismissal of the suit on the ground that all payments were made and nothing was remaining due. It was also pleaded by the appellant/defendant that the workmanship of the work of the respondent/plaintiff was not up to the mark and that the respondent/plaintiff is only entitled to payment to those invoices which are approved and verified by the appointed Architect. Appellant/defendant denied its liability to pay the suit amount.
5. Issues were framed in the suit on 2.4.2013 and thereafter evidence was led by the respondent/plaintiff by examining not only himself but the appointed Architect of the appellant/defendant as FAO No. 449/2017 Page 2 of 5 PW2. None of these two witnesses were cross-examined by the appellant/defendant and who also did not lead evidence and consequently the suit was decreed for Rs.6,63,591/- along with interest at the rate of 14% per annum.
6. The subject application under Order IX Rule 13 CPC was filed by the appellant/defendant pleading that it had appointed an Advocate Sh. Anjani Kumar Mishra up to the year 2014 when his wife was taken ill and admitted to hospital and she expired on June, 2014. It is pleaded that the Advocate had informed the appellant/defendant that he would not be able to appear in the suit and the matter be assigned to someone else. It is, however, noted that the junior of Sh. Anjani Kumar Mishra, Advocate namely Sh. Shailender Mishra, Advocate, kept on appearing in the case. Inspite of appearance through an Advocate appellant/defendant did not lead evidence and took time for some settlement. It is pleaded by the appellant/defendant that they came to know about the judgment and decree only when the amount was attached from their bank account.
7. Trial court, in my opinion, has rightly dismissed the application under Order IX Rule 13 CPC because in this case the issue FAO No. 449/2017 Page 3 of 5 was not that the appellant/defendant was not served but whether the appellant/defendant had sufficient cause for non-appearance. Sufficient cause for non-appearance in this case is to be taken in the context that the appellant/defendant had engaged an Advocate, the Advocate had appeared, and thereafter even the junior of the Advocate, namely, Sh. Shailender Mishra appeared on 18.11.2014, 19.2.2015, 31.3.2015 and 1.4.2015. Appellant/defendant stopped appearing in the Court from 21.5.2015 and whereafter the evidence of the respondent/plaintiff was recorded. Appellant/defendant therefore had knowledge of the proceedings in the suit through its Advocate.
8. Trial court has rightly observed that on 2.5.2013 affidavit by way of evidence of PW1 was taken on record and copy of which was supplied. Thereafter, the case came up for cross-examination of PW1 on 19.2.2015 and which cross-examination was not done and in fact thereafter the matter was adjourned thrice. Once again on 21.5.2015 no one appeared for the appellant/defendant but yet the trial court yet did not pass an adverse order but again adjourned the matter for 16.7.2015. It is only on 16.7.2015 that the right to cross-examine PWs was closed on account of non-appearance of the FAO No. 449/2017 Page 4 of 5 appellant/defendant till 1:00 p.m. on this date fixed. Thereafter, the appellant/defendant did not appear and hence evidence of the appellant/defendant was closed.
9. The aforesaid facts shows that the appellant/defendant was duly represented by its Advocate. An Advocate is the agent of a client. Appearance by an agent/advocate is to be taken as acknowledgement of the appearance and knowledge of the client being the appellant/defendant. Once that is so, appellant/defendant cannot urge that it came to know of the ex-parte decree only when the decretal amount was attached from its bank account.
10. There is no merit in the appeal and the same is hereby dismissed.
NOVEMBER 17, 2017 VALMIKI J. MEHTA, J
AK
FAO No. 449/2017 Page 5 of 5