Whether Reporters of Local Papers may be allowed to see the judgment?
NO 2 To be referred to the Reporter or not?
NO 3 Whether their Lordships wish to see the fair copy of the judgment?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder?
NO 5 Whether it is to be circulated to the civil judge?
NO ==================================== ECOBOARD INDUSTRIES LIMITED THRO DEPUTY GENERAL MANAGER....Petitioner(s) Versus GUPTA LAMINATES....Respondent(s) ==================================== Appearance:
MR MOHSIN M HAKIM, ADVOCATE for the Petitioner(s) No. 1 MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 1 ==================================== CORAM:
HONOURABLE MR.JUSTICE G.B.SHAH Date : 01/10/2013 CAV JUDGEMNT
1. The present petition is directed against the order dated 19.12.2012 passed by learned 5th Additional Senior Civil Judge, Vadodara below exh. 1 in Misc. Civil Application No. 183 of 2012 whereby learned trial Judge, for the reasons recorded in the order, has dismissed the application for condonation of delay.
2. The broad facts of the case are that the petitioner company original defendant has filed the application exh. 1 in Misc. Civil Application No. 183 of 2012 for condonation of delay of 536 days caused in filing the application for setting aside ex parte decree dated 13.05.2011 passed in Special Civil Suit No. 161 of 2006. The said suit was filed by the respondent original plaintiff herein against the present petitioner for recovery of Rs.8,77,484=92 paise. In pursuance of the notice, the respondent herein appeared and filed the reply at exh. 9 contending that the petitioner herein has not shown sufficient reasons in the application for condonation of delay and the same are totally false. Ultimately, learned trial Judge, after hearing both the sides, rejected the application. Hence, the present petition.
3. Learned advocate Mr. MTM Hakim for the petitioner original defendant invited the attention of this Court that the decree has been passed on 13.05.2011 and the Special Execution Application No. 78/2012 was filed on 12.04.2012 i.e. almost after a year. He submitted that in the execution proceedings, the process has been served on the petitioner original defendant on 17.09.2012 and the petitioner herein has obtained the copy on 17.10.2012 and filed Misc. Civil Application No. 183 of 2012 under Order IX, Rule 13 of the Code of Civil Procedure Code, 1908 ( the Code for short) in Special Civil Suit No. 161 of 2006 on 01.11.2012. He, therefore, submitted that calculating the time period from the date of decree i.e. 13.05.2011 and considering the fact that the process of execution proceedings has been served on 17.09.2012, as such, no such delay has been occurred because after the decree, the plaintiff respondent herein has filed the execution proceedings after approximately one year and that period should not be counted as a delay on the part of the petitioner original defendant. He further submitted that during the said period of one year, neither concerned advocate nor any one has informed regarding the decree which has been passed as referred above. He submitted that, moreover, the petitioner original defendant has also filed the criminal case under Section 138 of the Negotiable Instruments Act, 1881 before the court at Pune which is against the present respondent original plaintiff which is still pending and in the said proceedings, the respondent has never put the fact of passing of decree in the knowledge of the petitioner herein. Lastly, Mr. Hakim submitted that though the petitioner original defendant has shown sufficient and cogent reasons for condonation of delay, the application is rejected by passing the impugned order. Lastly, it is requested to allow this petition.
4. On the other hand, learned advocate Mr. Dhaval D. Vyas for the respondent has drawn the attention of this Court to page 19 - paragraph 8 to contend that the averments made in the said paragraph had clearly showed that as such the petitioner original defendant herein has admitted most of the facts which have been narrated in the said paragraph. He further submitted that as such neither affidavit of the concerned employee who has left the service has been filed in support of the Misc. Civil Application filed by the petitioner nor any evidence related to the advocate has also been forthcoming on record. He further submitted that considering the facts narrated in paragraph 8, it is clear that as such the petitioner original defendant herein was within the knowledge of the fact that the suit has proceeded further and as such the petitioner has waited for execution of the decree so that they can file the restoration application and prolong the proceedings. In support of his arguments, learned advocate for the respondent original defendant herein has placed reliance on the dates i.e. 24.04.2006 filing of the suit, 26.10.2006 when the summons of the Court served which is not in dispute, 08.12.2006 the stage of filing the written statement is closed, 21.02.2007 Vakalatnama has been filed on behalf of the petitioner original defendant by the concerned advocate, 11.11.2009 issues are framed by the court in the presence of the advocate for the petitioner original defendant and 25.11.2009 the application exh. 10 is filed by the defendant to reopen the stage for filing of the written statement. It is pertinent to note that the said application exh. 10 was filed by the employee on behalf of the petitioner company and the company has also put his signature thereon. He further submitted that on 04.01.2010, the concerned advocate for the petitioner company has directly informed to the head office that nobody has remained present on behalf of the company and accordingly, the Court has closed the stage of filing of the written statement and request was made to send the representative of the defendant company at Vadodara for taking necessary action in accordance with law. The said application exh. 10 was rejected by the Court on 12.04.2010 and thereafter the Court has passed the decree on 13.05.2011.
4.1 Mr.
Vyas submitted that so far as the averments made in the Misc. Civil Application No. 183 of 2012 are concerned, no whisper has been made by the petitioner original defendant so far as the letter dated 04.01.2001 and filing of the application at exh. 10 are concerned. In support of his submission, Mr. Vyas placed reliance on the decision reported in 2012(2) GLH 725 (Samusunisha Begaum w/o Dr Nasarullahkhan Dhaniani and Ors Vs Vishnukumar Ambelal Patel and Ors) wherein in paragraph 25, the Court observed thus:
25. Under such circumstances, the Trial Court committed a serious error in condoning delay on the ground that the advocate Shri Upadhyay did not inform the original plaintiff as well the respondents about the dismissal of the suit for non prosecution. Even if I assume for a moment that the same is true by itself would be no ground to condone such a long and inordinate delay as the litigant owes a duty to be vigilant of his own rights and is expected to be equally vigilant about the judicial proceedings pending in the Court initiated at his instance. The litigant, therefore, should not be permitted to throw the entire blame on the head of the advocate and thereby disown him at any time and seek relief. I regret to state that in the present case, learned advocate of the plaintiff Shri Upadhyay for some reasons has taken up the entire blame on his head and it appears that the same has been done only with a view to get the delay condoned. Over a period of time there is a growing tendency on the part of an advocate to file affidavit trying to explain the circumstances, under which, delay has occurred be it in preferring an appeal or filing an application for restoration of suit like in the present case etc. I am of the view that the practice of an advocate filing his affidavit in an application filed under Order 9 Rule 9 of Civil Procedure Code is totally wrong and deserves to be deprecated. I have noticed in many cases that even though an advocate is not at fault, he would file an affidavit taking the entire blame upon himself only because the lethargic and negligent litigant wants him to file such an affidavit so that the Court concerned in the name of substantial justice would condone the delay. Affidavit of an advocate may come on record in the rarest of rare circumstances and not as a matter of course. Let me assume for a moment that in the present case, concerned advocate of the original plaintiff could not remain present on 20/9/1999 the day on which the Trial Court dismissed the suit for non prosecution and thereafter he was not able to keep a track of the suit but was it not the duty of the original plaintiff to keep watch on the proceedings and inquire once atleast with his advocate as regards the status of the suit? This could have been done even if the original plaintiff and his family was in U.S.A. I do not blame the original plaintiff in going to U.S.A. but being a litigant in the Court of Law he is expected to keep a close watch on the proceedings as well as on the status of such proceedings. After filing a civil suit a litigant can not go off to sleep and wake up from a deep slumber after 5 years as if the Court is a storage of suits filed by such negligent litigants. If that be so, then Court would be quite justified in dismissing the suit for non prosecution and should be loathe enough to restore the suit unless strong grounds are made out by the party concerned. There is one more reason why I am very serious in commenting on the practice of advocates filing affidavit. There is a general impression in the mind of the litigants that if a lawyer would file an affidavit saying that he was unable to attend the Court or because of his negligence the suit or appeal came to be dismissed then the Court would very willingly accept such explanation and condone the delay. This impression needs to be eradicated. Advocates at time forget that in the zeal to help the client by filing such affidavit they would land up in difficulty if a litigant would file proceedings for compensation on the ground of deficiency in service.
4.2 Mr.
Vyas submitted that the said decision referred above has been challenged before the Honourable Supreme Court by preferring Special Leave Petition (C) No. 20568 of 2012 and vide order dated 27.07.2012, the said SLP came to be dismissed.
4.3 It is pertinent to note that the main summons issued in the concerned suit has been served on the petitioner original defendant on 26.10.2006 and the petitioner original defendant herein has filed its appearance on 21.02.2007 i.e. approximately after four months.
4.4 Mr.
Vyas has also put reliance on the decision in the case of John Implex (Pvt.) Ltd., M/s Vs Athul Kapul reported in AIR 2009 SC (Supp) 2025 wherein in paragraph 11, the Court has observed thus:
No sufficient or cogent reason has been assigned by the appellants as to why despite receipt of the notice, they did not appear before the Court of the learned Additional District Judge, Delhi. The plea taken before us that the appellants were not conversant with the Hindi language cannot be accepted. A copy of the summons produced before us shows that it was both in Hindi as well as in English language. We, therefore, fail to appreciate as to why such an incorrect stand had been taken by the appellants.
It is furthermore not dispute before us that a finding of fact had been arrived at by the learned Additional District Judge that having regard to the quantum of rent being above Rs.6,500/- per month, the provisions of the Delhi Rent Control Act will have no application. It had further been found that the tenancy in respect of the premises had legally been determined.
5. I have considered the above-referred rival submissions made by the learned advocates for the parties. It has been vehemently argued by learned advocate Mr. Hakim for the petitioner original defendant that while deciding the application for condonation of delay the trial Court ought to have considered the facts pleaded by the petitioner related to delay i.e. subsequent events took place after the ex parte judgment and decree and more particularly, after the petitioner defendant was served with summons of execution proceedings on 17.09.2012. In short, according to learned advocate Mr. Hakim for the petitioner defendant the facts leading to the ex parte judgment and decree were not required to be considered since the said stage has yet not arrived. I do not find any substance in the above submissions made by learned advocate Mr. Hakim for the petitioner defendant and the said submissions are fallacious because in paragraph No. 4 of the application for the condonation of delay i.e. Misc. Civil Application No. 183 of 2012, it is averred by the petitioner defendant that it was not having any knowledge of the date of hearing of Special Civil Suit No. 161 of 2006 before 17.09.2012. As per the petitioner defendant it had received notice regarding executing proceedings on 17.09.2012 which has been received through Registered Post with Acknowledgment Due and immediately petitioner defendant contacted his advocate Mr. Ketan Shah, however, said Ketan Shah, Advocate informed to the petitioner that he had already relieved as an advocate of the petitioner company in the said suit and already communicated to local representative of the petitioner. It is further averred by the petitioner that local representative of the petitioner s company is already left service since long back and his knowhow are not known to the petitioner company. In Para 8 of the application for condonation of delay No. 183 of 2012 in Special Civil Suit No. 161 of 2006, the petitioner has averred that due to market instability and loss in company business officers of the company from corporate / branch offices left services without communicating happening in the Court matters. The said officers of the company and advocate of company acted negligently for Court proceeding. The petitioner has also averred that due to financial crisis, the day to day activities of the company was stopped and company could not pay attention to the plaintiff for negotiations. It goes without saying that all the above-referred averments narrated in the Misc. Civil Application No. 183 of 2012 in Special Civil Suit No. 161 of 2006 by the petitioner defendant are prior to 17.09.2012 on which, the petitioner - defendant has placed reliance and narrated the same for taking it into consideration. If these are the averments in the delay condonation application then, how the learned advocate for the petitioner has submitted that the stage has yet not arrived to consider the same and at present stage, the application for condonation of delay caused in passing ex parte judgment and decree alone ought to have been considered. In my view, the said submissions are nothing but misguiding one and the petitioner defendant has tried to distract the main issues which have been dealt with by the learned trial Judge at length. It is important to note that the petitioner has not mentioned the name of the local representative of the petitioner s company who had left the services since long back nor has produced any document to show that on which date said legal representative had left the service nor has produced any document related to handing over the charge nor has produced the last Salary Slip. Moreover, referring the document at exh. 10 dated 25.11.2009 signed on behalf of the petitioner company along with the signature of petitioner s advocate which is the application requesting the Court to reopen the stage for filing the written statement and the order dated 12.04.2010 passed below the same on merits after hearing the learned advocates for the parties in Special Civil Suit No. 161 of 2006 and the retirement purshis exh. 11, filed by the learned advocate for the petitioner defendant it can not be said that the learned advocate Mr. Ketan Shah had remained negligent as alleged by the petitioner defendant as referred above. It is not the case of the petitioner defendant that for the alleged negligence on the part of learned advocate Mr. Ketan Shah any notice has been given by the petitioner defendant to the said advocate. The entire conduct of the petitioner defendant is narrated at length in paragraph Nos. 8, 9 and 10 of the impugned order and I have carefully gone through the same. I find myself in agreement with the same. It appears that with a view to delay and prolong the outcome of the Special Civil Suit No. 161 of 2006, the petitioner defendant had made deliberate attempt and ultimately it had tried to throw the burden on the part of legal representative who had alleged to have left service and on the advocate Mr. Ketan Shah who alleged to have remained negligent and as such, there appears no merit in the said submission as discussed above. Under the circumstances, there appears no infirmity in the impugned order dated 19.12.2012 passed by the learned trail Judge in Misc. Civil Application No. 183 of 2012. I do not find any perversity or arbitrariness in the impugned order and in my view the just and proper order has been passed by the Court below and I do not find any reason to interfere with the same. As a result, this Special Civil Application No. 6861 of 2013 deserves to be dismissed and accordingly it is dismissed.
[ G. B. Shah, J. ] pathan/hiren Page 15 of 15