Delhi District Court
Judgment vs . on 9 December, 2014
In the court of Ashwani Kumar Sarpal, Additional District Judge-1,
North East District, Karkardooma Courts, Delhi
RCA no. 46/14
SMT. SHAKUNTALA
vs.
SH. SHANKAR LAL AGGARWAL
(APPEAL AGAINST THE ORDER DATED 25.9.2014 PASSED ON THE
APPLICATION UNDER ORDER IX RULE 9 CPC AND APPLICATION UNDER
SECTION 5 OF THE LIMITATION ACT IN CIVIL SUIT NO. 68/2012 VIDE M. NO.
12/2014 BY COURT OF SH. SIDHARTH MATHUR, SENIOR CIVIL JUDGE (NE),
KARKARDOOMA COURTS, DELHI)
Date of filing of the appeal------28.10.2014
Date when order was reserved---8.12-2014
Date of final decision--------------9.12-2014
===========================
JUDGMENT:-
Appellant/plaintiff filed a suit for possession, recovery of arrears of rent etc., bearing No. 68/2012 against the respondent/defendant on 2.4.2012 in which written statement was filed by the him on 24.5.2012. Thereafter plaintiff did not file any replication so her right to file the same was closed on 10.9.2012 but an application under Order XXXIX Rules 1 and 2 CPC was allowed on 23.1.2013. The mater was thereafter adjourned for admission/denial of documents and for framing of issues and the parties were directed to appear in person. The plaintiff did not appear despite specific directions on 18.3.2013 and again on adjourned date i.e. 19.8.2013. When neither the plaintiff nor her counsel turned up then the suit was dismissed in default and for want of prosecution on 19.8.2013 at 2.20 pm. An application under Order IX Rule 9 CPC for restoration of the suit was moved on 7.4.2014 after a gap of about 7-½ months vide M. No. 12/2014 on the ground that counsel for the plaintiff could not appear as his wife had expired and he was under depression those days. A blame was also put upon the counsel that he never informed the plaintiff about the progress or status of the case or the next date of hearing. It is alleged that in the last week of March 2014 the plaintiff came to know about the dismissal of the suit in default from the newly engaged counsel. The suit was sought to be restored on the ground that she should not be allowed to suffer for the mistakes or omission of her previous counsel. Learned Trial Court vide order dated 25.9.2014 dismissed this application under Order IX Rule 9 CPC for restoration of the suit as well as application under Section 5 of the Limitation Act for condonation of delay. Hence this appeal is filed before this Court.
I have gone through the Trial Court Record and it is found that plaintiff did not appear on 18.3.2013 despite directions to appear for admission/denial of documents as well as on 19.8.2013. It is mentioned in the applications that she came to know about the dismissal of the case in the last week of March 2014 but this fact is incorrect because the application for inspection of the record was moved by the newly engaged counsel only on 5.4.2014. Nothing is disclosed when the wife of the previous counsel expired and till what period he remained under depression and did not attend any case. No affidavit has been filed by the previous counsel in support of the application for restoration that due to his personal problems, he could not attend the case nor the plaintiff has filed any complaint against his previous counsel for the professional negligence due to which she had suffered.
It is very easy to put blame upon the previous counsel in not attending the matter whereas it was also obligatory upon the plaintiff to remain in constant touch with her counsel to know about the details and status of her case, what proceedings took place on a particular date and what is the adjourned date and the purpose for which it is fixed. The party can not be simply allowed to sit at his house and to leave everything upon his counsel by just engaging him. The party is also under obligation to keep track of his case. There is no explanation why the plaintiff never appeared in the Trial Court at all since beginning and what steps she took prior to February 2014 to know about the progress and details of her case which was filed in April 2012. It indicates that the plaintiff was also highly negligent in pursuing her case.
Counsel for the plaintiff while relying upon the case laws Rakesh Kumar Gupta vs Khushi Ram Bihari Lal 199 (2013) DLT 435;
Munnivenkatappa vs The Commissioner, Bangalore Development Authority AIR 2001 Karnataka 371; Ashok Ravji Vadodriya vs Municipal Corporation of Greater Bombay AIR 2004 Bombay 8; Universal Builders & Contractors vs Sheila Singh Uppal 154(2008) DLT 69; State Bank of Patiala vs Anant Raj Agencies Properties 2012 Legal Eagle (Del) 1822; Faeel Ahmad vs Islam Ahmad 179 (2011) DLT 335 and Virender Singh Bahl vs Y.K. Kapoor AIR 2001 Delhi 79, argued that party should not be allowed to suffer for lapses and negligence of his counsel.
The circumstances of the case cited above by the counsel for the appellant titled as Rakesh Kumar Gupta vs Khushi Ram Bihari Lal are different from the present case because in that case the petitioner was continued in touch with the previous counsel on telephone, was visiting his chamber as and when called and even after discovery of the dismissal of his case sent a letter to the previous counsel besides was resident of Faridabad. The same is not the position in the present case.
In another cited case Munivenkatappa vs Commissioner Bangalore Development Authority, there was no issue involved regarding the negligence of the lawyer due to whose conduct the petition before the Trial Court was dismissed in default.
The case of Ashok Ravji Vadodriya vs Municipal Corporation, can be distinguished from the present circumstances because the case was dismissed in default due to wrong noting of the date by the counsel and he could not appear on the due date when the case was dismissed in default. The High Court had held that it is the duty of the lawyer to attend proceedings and take dates and it is not the job of the client.
The another case Universal Builders & Contractors vs Sheila Singh Uppal cited by the counsel for the plaintiff is also distinguishable from the facts and circumstances of the present case because in that matter, the previous counsel of the respondent had expired after prolonged illness and the respondent was not aware about the death of her counsel. The High Court did not opt to set aside the order of the Trial court which has in its discretion restored the suit.
In the cited case of State Bank of Patiala vs Anant Raj Agencies, an affidavit of the counsel was submitted to justify the non appearance because of misplacement of file and on this ground the Trial Court had restored the suit and the Hon'ble High Court rejected the revision petition.
In the case of Faeel Ahmad vs Islam Ahmad, the counsel for the petitioner had instructed his client not to come in the Court on each and every date of hearing but later on that counsel was involved in some criminal case and absconded. The High Court was satisfied that there was no willful default on the part of the petitioner so the suit was restored.
The another case Virender Singh Behl vs Y.K. Kapoor, cited by the counsel for the plaintiff was transferred from High Court to District Court due to change of pecuniary jurisdiction and the court notices were issued to the parties but due to absence of petitioner despite service of the court notice through affixation, the suit was dismissed in default. The High Court held that the service of court notice through affixation was not proper and as per law so the suit was restored. There was no question of any negligence of the counsel was involved which is the main ground taken in the present appeal.
Here in this matter, there is no averment in the application under Order IX Rule 9 CPC filed before the Trial Court that the plaintiff was in touch with her counsel and was taking information from time to time about the progress of the case prior to the date of dismissal. From the contents of the application it appears that the husband of the plaintiff sought information from the previous counsel which was not given. This fact leads to the inference that the plaintiff never remained in contact with her previous counsel ever but it was her husband who was the main litigant and thus the reliance placed on some medical record of the plaintiff in the present appeal which were never relied upon or produced or even alleged in the application before the Trial Court can not be accepted. Non-taking of any action against the counsel for his negligence and lapses as well as upon his refusal to move an application for restoration is an other fact which goes against the plaintiff. The application for restoration was not supported by any affidavit of the previous counsel who allegedly could not appear due to sudden death of his wife and remained under depression is also a fact which is going against the plaintiff.
The plaintiff even did not disclose the date of death of wife of the previous counsel and the period for which he remained under depression as well as the period for which he never attended his professional work. The allegations made in this regard are vague and general in nature. The telling a false fact in the application that she came to know in the last week of March 2014 about the dismissal of her suit, is also contradictory from the record because inspection application was moved only on 5.4.2014 by the new counsel who was engaged on 4.4.2014 as per date mentioned in the vakalatnama.
The vakalatnama in the Trial Court record point out that the plaintiff was being represented by three Advocates. In her application under Order IX Rule 9 CPC moved in the Trial Court, it is not disclosed the exact name of the counsel who was mainly negligent and was not attending the case due to alleged depression. No allegation is levelled against other two Advocates who were also engaged. Thus the story of alleged negligence of all the Advocates can not be believed.
Delhi High Court in case M.Paul Babuta vs Union of India, 1998 VI AD (Delhi) 601 held that by engaging a counsel a party to the case is not relieved of his duties and obligations in the matter. Where a party either does not brief the counsel or keep no contact with him, it is the party who is in default and negligent and shall have bear the consequences. Where a party to the case is prima facie in default, the negligence of the counsel also can not come to his aid.
In another matter titled as Indian Sewing Machines vs Sansar Machine Limited 1994 (3) DRJ 382, Delhi High Court held that the question to be examined is whether the responsibility of the defendant as a litigant comes to an end merely by engaging a counsel or should not a litigant show diligence on his part. It can be understood if a litigant has been diligent enough and acting bonafide then the fault of the counsel may not be labeled as a penalty against a litigant.
Keeping in view the above circumstances, I am of the view that plaintiff is trying to conceal her inaction and negligence by leveling the baseless and unfounded allegations against her previous counsel and accordingly she is not entitled for any relief in this appeal. The trend to put entire blame upon the previous counsel for the purpose of concealment of one's own lapses and default is required to be depreciated. Accordingly the appeal is hereby dismissed.
Trial Court record be sent back along with a copy of this order and appeal file be consigned to the record room.
(Ashwani Kumar Sarpal)
Dt.-9-12-2014 Addl. District Judge-01 (NE)
Karkardooma Courts Delhi