Delhi District Court
Dr. A. Bandyopadhyay vs Dr. Vijendra Singh on 24 February, 2012
IN THE COURT OF SH. SANJAY GARG, ADDITIONAL
DISTRICT JUDGE01 (NORTH), TIS HAZARI COURTS,
DELHI.
MCA No.04/2012
In Re:
1. Dr. A. Bandyopadhyay,
Principal Scientist, NATP,
Krishi Anusandhan BhavanII,
IARI Campus, New Delhi110012.
2. The Director,
National Research Centre for Groundnut
(NRCG), Ivnagar, Junagadh362001,
Gujarat.
3. The Secretary,
Indian Council of Agricultural
Research (ICAR),
Krishi Bhawan,
New Delhi110001. ....Appellants
Versus
1. Dr. Vijendra Singh,
S/o late Sh. Dalel Singh,
Scientist (Sr. Scale),
Division of Genetics,
Indian Agricultural Research Institute (IARI),
Pusa, New Delhi110012.
MCA No.04/2012 Page 1/8
Also at:
Scientist Apartment,
B20, IARI, Pusa, New Delhi110012.
2. The President,
Indian Society of Genetics & Plant
Breeding (ISGPB), Pulse Laboratory,
Division of Genetics,
Indian Agricultural Research Institute (IARI),
Pusa, New Delhi. ....Respondents
Date of institution : 04.02.2012
Date of reserving order : 14.02.2012
Date of decision : 24.02.2012
JUDGMENT:
1. This appeal is directed against the order dated 09.01.2012 passed by the Ld. Civil Judge whereby the applications under Order IX Rule 13 CPC and under Section 5 of the Limitation Act preferred by the appellants herein were dismissed.
2. The factual matrix sans unnecessary details is as follows: On 07.10.2002, the plaintiff (respondent no.1 herein) instituted a MCA No.04/2012 Page 2/8 Suit No.122/2002 for declaration and compensation averring that the defendant no.4 (appellant no.3 herein) was the employer of the plaintiff and defendant no.1 (appellant no.1 herein) and also the head office of the defendant no.3 (appellant no.2 herein); that the defendant no.2 (respondent no.2 herein) was a registered society and used to publish research journal in the name of 'Indian Journal of Genetics and Plant Breeding' and the defendant no.3 was the research centre from where the manuscripts of research papers were sent for publication; that from 16.11.1988 to 19.06.1995, the plaintiff and the defendant no.1 were posted with the defendant no.3 as Scientist (Plant Breeding) and Head of Plant Breeding respectively and had worked in a joint research project on plant breeding; that in November, 2000 and May, 2001, the defendant no.1 got published the joint research work in his name in the form of two research papers wherein no authorship was given to the plaintiff. The plaintiff, therefore, prayed that his name be directed to be mentioned as an author of the said project and compensation of Rs.1,25,000/ be also awarded to him for mental agony. During MCA No.04/2012 Page 3/8 the pendency of the suit, the defendants moved an application under Order VII Rule 11 CPC for rejection of the plaint and the plaintiff filed an application under Order VI Rule 17 CPC for amendment of the prayer of the plaint. Vide order dated 03.02.2003, the application under Order VII Rule 11 CPC was allowed and the plaint was rejected and it was observed that consequent thereto, the application under Order VI Rule 17 CPC had become infructuous. Being aggrieved therefrom, the plaintiff preferred a Civil Revision Petition No.563/2003 before the Hon'ble High Court of Delhi which was allowed vide order dated 03.02.2005 and the trial court was directed to hear and dispose of the application under Order VI Rule 17 CPC before passing any orders on the application under Order VII Rule 11 CPC. Pursuant thereto, the plaintiff appeared before the trial court and court notice was directed to be issued to the defendants as well as their counsel for 10.05.2005. On 10.05.2005, the court was on leave and the matter was posted for 20.05.2005. Though on 20.05.2005 and 17.09.2005, a proxy counsel appeared for the defendants but later on, none appeared MCA No.04/2012 Page 4/8 for them. Resultantly, the defendants were proceeded exparte on 24.08.2006 and the application under Order VI Rule 17 CPC filed by the plaintiff was allowed. The suit was decreed vide exparte judgment dated 21.01.2008. Thereafter, the defendants no.1, 3 & 4 moved applications under Order IX Rule 13 CPC and under Section 5 of the Limitation Act on 14.05.2008 and 04.12.2009 respectively averring that the factum of passing of the exparte judgment came to their knowledge only on 21.04.2008 when the plaintiff visited the office of the defendant No.4 and informed about the same. According to the defendants, since their counsel could not be contacted on telephone and no response was received from him with regard to the letter dated 23.04.2008 enquiring about the fate of the case, they engaged another counsel on 25.04.2008 and on obtaining the certified copies of record, they came to know that their previous counsel had failed to appear before the court and as a result of which exparte decree dated 21.01.2008 was passed. Vide common order dated 09.01.2012, both the said applications were dismissed by the trial court by observing that the applicants MCA No.04/2012 Page 5/8 were callous in pursuing their case as they neither appeared in the matter personally nor tried to contact their counsel regarding the progress of the case.
3. The appellants had moved the applications for setting aside the exparte decree and for condoning the delay on the premise that they were not aware that due to the nonappearance of their counsel, they had been proceeded exparte in the matter and that they came to know about the exparte decree only when the respondent No.1/plaintiff visited the office of the appellant No.3 on 21.04.2008 and informed about the same. It is a matter of record that after the remand of the case by the Hon'ble High Court, the court notice was ordered to be issued to the appellants which was served upon them. The averment of the appellants that they had instructed their counsel Sh. Lalan Chaudhary to represent them in the case is corroborated by the fact that the said counsel made appearance before the trial court on 20.05.2005 and 17.09.2005 through his associate and sought time to file reply to the application under Order VI Rule 17 CPC MCA No.04/2012 Page 6/8 preferred by the respondent no.1/plaintiff. Since the appellants no.2 and 3 are the instrumentalities of the State, their officials can not be expected to make personal appearance in the matter on each and every date of hearing. All that was expected of the appellants was to engage an advocate to represent them in the case. Having done so, it became the obligation of the advocate to keep the appellants abreast with the proceedings of the case. The appellants should not be made to suffer for the failure of their counsel to discharge his duty towards them. No doubt, the appellants had also defaulted in remaining in touch with their counsel but the court can not loose sight of the fact that the transaction of business of the government is done leisurely by the officers who do not take personal interest in the matters. It is trite that the endeavour of the court should be to decide the matters on merits especially when the opposite party can be compensated in terms of money. Considering the overall facts and circumstances of the case, the appeal is allowed and the exparte decree dated 21.01.2008 is set aside qua the appellants as well as the respondent no.2 herein subject to the costs of Rs. MCA No.04/2012 Page 7/8 6,000/. The parties are directed to appear before the trial court on 15.03.2012. The appellants shall tender the costs to the respondent no.1 herein on the said date.
File be consigned to the record room.
Pronounced in the open court. (SANJAY GARG)
Dated : 24.02.2012 Additional District Judge01
(North), Tis Hazari Courts,
Delhi.
MCA No.04/2012 Page 8/8