Delhi High Court
Rakesh Kumar Gupta vs M/S Khushi Ram Bihari Lal Ltd. & Ors. on 8 March, 2013
Author: Hima Kohli
Bench: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI + I.A. No.20367/2011 (by the plaintiff u/O IX R 9 CPC) and I.A. No. 20368/2011 (by the plaintiff u/S 5 of Limitation Act) in CS(OS) 1386/2009 Date of Decision: 8th March, 2013 IN THE MATTER OF RAKESH KUMAR GUPTA ..... Plaintiff Through: Mr. G.L. Rawal, Sr. Advocate with Mr. Kuljeet Rawal, Advocate versus M/S KHUSHI RAM BIHARI LAL LTD. & ORS. .... Defendants Through: Mr. Rajiv Nanda, Advocate with Ms. Shawana Bari, Advocate CORAM HON'BLE MS.JUSTICE HIMA KOHLI HIMA KOHLI, J. (Oral)
1. The plaintiff has filed I.A. No.20367/2011 under Order IX Rule 9 CPC praying inter alia for setting aside the order dated 16.12.2010, whereunder the suit was dismissed in default. Alongwith the present application, the plaintiff has filed I.A. No.20368/2011 for condonation of delay of 357 days in filing an application under Order IX Rule 9 CPC.
2. Learned Senior Advocate appearing for the plaintiff states that in August 2009, the plaintiff had instituted the present suit for recovery of moneys against the defendants through his previous counsel, whereafter CS(OS) 1386/2009 Page 1 of 6 summons were issued in the suit and the written statement was filed. As the plaintiff did not file the replication, the right to file the same was closed vide order dated 27.07.2010. In the meantime, the defendants filed an application under Order VII Rule 11 CPC for dismissal of the suit on the ground that it is not maintainable. No reply was filed by the plaintiff to the said application and his right to file the same was closed. Subsequently, the plaintiff had filed an application under Order VI Rule 17 CPC for seeking permission to amend the plaint, registered as I.A. No.12577/2010, whereon notice was issued on 09.12.2010. Till the said date, the plaintiff was being duly represented through counsel. However, on 16.12.2010, when the suit and the pending interim applications were placed before the Court, none had appeared for the plaintiff. As a result, the suit was dismissed in default alongwith the pending application filed by the plaintiff.
3. The explanation offered by the counsel for the plaintiff for condonation of delay is that the plaintiff had engaged a counsel for conducting the suit, with whom he was telephonically in touch and he would also visit his chambers in the Supreme Court Complex, as and when called upon to do so. Subsequently, when the plaintiff had attempted to contact the counsel to find out the status of his case, he claims that his counsel started to evade him and did not inform him of the status of the suit. It was only in November, 2011 that the plaintiff undertook an inspection of the court records and discovered that the suit CS(OS) 1386/2009 Page 2 of 6 had been dismissed on 16.12.2010 and immediately upon becoming aware of the said position, the plaintiff had dispatched a letter dated 25.11.2011 to his counsel through registered post. However, his counsel did not respond to the said letter. Thereafter, the plaintiff approached the present counsel to take necessary steps for restoration of the suit and the present applications were then filed for seeking condonation of delay of 357 days in filing the restoration application and for setting aside the order dated 16.12.2010. Counsel for the plaintiff also points out that the plaintiff is a senior citizen and has been keeping indifferent health as he is suffering from bronchitis and being a permanent resident of Faridabad, he was not in a position to attend the hearings in Court on every date, for which he had chose to rely on his counsel.
4. Per contra, counsel for the defendants opposes the present applications on the ground that the explanation offered by the plaintiff for condonation of delay and restoration of the suit is not bonafide. He submits that even if it is assumed that the plaintiff was following up the matter with his counsel for a period of time, he has no plausible explanation to offer for not contacting his advocate for almost one year prior to the dismissal of the suit on 16.12.2010 and that lack of diligence on his part is writ large on the record. It is further stated by the counsel for the defendants that the dismissal of the present suit due to the default on the part of the plaintiff has resulted in a valuable right accruing in favour of the defendants and failure on the part of the plaintiff to furnish CS(OS) 1386/2009 Page 3 of 6 a reasonable justification for explaining a prolonged delay of 357 days in filing the restoration application ought to be a sufficient reason to dismiss the present applications. Lastly, it is submitted by the counsel for the defendants that the fact that the plaintiff is suffering from bronchitis can hardly be treated as a ground for condonation of such a prolonged delay, as the said ailment is not of such a magnitude as to have kept him home bound.
5. The Court has heard the counsels for the parties and carefully considered their respective submissions.
6. As has been noted above, the plaintiff was being duly represented through a counsel till 09.12.2010, when an application filed on his behalf under Order VI Rule 17 CPC, for seeking some amendments in the plaint was listed before the Court. Notice was issued on the said application, returnable on 16.12.2010. It is only on 16.12.2010 that none had appeared on behalf of the plaintiff, which had resulted in the suit and the application being dismissed in default. It is undoubtedly true that once a client has engaged a counsel to conduct a matter in Court on his behalf, he is not expected to visit the Court on every date of hearing and pursue the case personally.
7. Ordinarily, clients rely on their counsel for purposes of prosecuting/defending their case, unless and until circumstances require their personal presence in Court. It can also not be stated that it is a CS(OS) 1386/2009 Page 4 of 6 case of a nature where the plaintiff would stand to gain if the suit is dismissed as it is a suit for recovery that has been filed by him against the defendant and the same has got delayed due to the aforesaid sequence of events. The explanation offered by the counsel for the plaintiff that the plaintiff had behaved like a common prudent litigant by contacting his counsel from time to time and it was only in the latter part of the year 2011 that he came to know that his suit had been dismissed on account of the absence of his counsel on 16.12.2010, cannot be treated as such an unreasonable or implausible explanation as to reject the same outright. Ordinarily, judicial discretion of the Court ought to be tilted in favour of deciding cases on merits rather than by non-suiting parties on technical grounds. However, the Court is inclined to agree with the submissions made by the counsel for the defendants that the plaintiff has not been as diligent as he ought to have been in pursuing his suit and a whole year's delay in filing the present applications ought to have been substantiated by filing some documents to justify his indifferent health.
8. For the aforesaid reasons, while allowing the present applications filed by the plaintiffs and setting aside the order dated 16.12.2010, resultantly restoring the suit and the pending application to their original position and further, condoning the delay in filing the restoration application, it is deemed appropriate to impose costs of `10,000/- on the plaintiff. The aforesaid costs shall be paid to the defendants through counsel within two weeks from today. It is made clear that failure on the CS(OS) 1386/2009 Page 5 of 6 part of the plaintiff to pay costs within the timeline stipulated above, would result in the revival of the order dated 16.12.2010.
9. The applications are disposed of.
(HIMA KOHLI)
MARCH 8, 2013 JUDGE
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