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2006 DIGILAW 1066 (DEL)

ABSOLUT APPARELS v. VANISHREE ENTERPRISES

2006-06-12

S.L.BHAYANA, T.S.THAKUR

body2006
JUDGMENT CM. 6185/2006: T.S. Thakur, J.- There is a delay of 40 days in the refiling of the appeal papers in this case. The appellant has sought condonation of the same by filing the present application which is supported by an affidavit sworn by Sh. Amitosh Moitra, one of the partners of the appellant firm. A reading of the application and the affidavit shows that the delay was occasioned mainly because the clerk of the Counsel for the appellant has misplaced the Court fee of Rs. 9,650/- which was purchased but had been inadvertently kept in some other file. 2. Respondent No.2 who appeared in person for himself and on behalf of the remaining respondents stoutly opposed the prayer for condonation. He urged that the ground given by the appellant for condonation was neither cogent nor supported by an affidavit of the clerk who was responsible for misplacing the Court fee. We do not think so. The application sets out a specific case for condonation as indicated above and is supported by an affidavit of the partner of the appellant. We see no reason to disbelieve the averments made in the application and the affidavit. It is fairly well settled by the decision of the Supreme Court in Indian Statistical Institute v. M/s. Associated Builders & Ors., AIR 1978 SC 335 , that prayers for condonation of delay in refiling the appeal papers are not subject to the a rigorous tests which are usually applied to applications under Section 5 of the Act for condoning delay in the filing of the appeals. To the same effect are two Divisions Bench decisions of this Court in S.R. Kulkarni v. Birla VXL Ltd., 1998 V AD (Delhi) 634 and Radhey Shyam Gupta v. M/s. Kamal Oil & Allied Industries Ltd. & Ors., 129 (2006) DLT 346=CO A No. 56-601 b 2005 disposed of on 19.4.2005. Following the said decisions, we allow the present application and condone the delay. CM. 13433/2004: There is a delay of 20 days in the filing of this appeal. The present application seeks condonation of the said delay which is supported by an affidavit of the appellant. The application inter alia states that the delay had occurred because the case file was misplaced while the appellant was shifting from B-35 Pushpanjali, Delhi to 5, Western Avenue, Maharani Bagh, New Delhi. Mr. The present application seeks condonation of the said delay which is supported by an affidavit of the appellant. The application inter alia states that the delay had occurred because the case file was misplaced while the appellant was shifting from B-35 Pushpanjali, Delhi to 5, Western Avenue, Maharani Bagh, New Delhi. Mr. Bagai drew our attention to certain documents placed on record showing that Sh. Amitosh Moitra, the partner of the appellant had indeeded shifted his address from Pushpanjali to Maharani I Bagh. An intimation regarding the change of address sent to the Institute of Chartered Accountants of India and the Oriental Insurance Company bears the acknowledgement of the addressees. In addition, a copy of the possession letter has also been filed as Annexure A-10 to the rejoinder filed by the appellant from a reading whereof it is clear that Sh. Amitosh Moitra had indeed taken over possession of the new premises at Maharani Bagh on 27.7.2004. The version of the appellant that the file was misplaced in the process of shifting of the address, therefore, finds considerable support from the said documents. The delay in any case is not inordinate and is limited to around 20 days. Keeping in view the decision of the Supreme Court in Collector, Land Acquisition & Anr. v. Mst. Katiji & Ors., 1987 (2) SCC 107 ; Vedabai alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil & Ors., V (2001) SLT 366= (2001) 9 SCC 106 ; and Shrimant Jadhavrao Anandrao Pawar & Ors. v. Dilip Balvantrao Pawar & Anr., I (2002) SLT 240= (2002) 9 SCC 593 , we are inclined to condone the delay on payment of cost of Rs. 2,000/-. We accordingly allow the present application and condone the delay. The costs shall be paid within four weeks from today. RFA 557/2004: This appeal arises out of a judgment and order dated 27.4.2004 whereby the Additional District Judge, Delhi has rejected the plaint under Order 7 Rule 11(f) of the CPC in suit filed by the appellant for recovery of a sum of Rs. 7,37,540/ -. A reading of the judgment and order impugned in the appeal would show that the rejection of the plaint carne on account of the failure on the part of the plaintiff in taking steps for the service of defendant Nos. 3 and 4 in the suit. 7,37,540/ -. A reading of the judgment and order impugned in the appeal would show that the rejection of the plaint carne on account of the failure on the part of the plaintiff in taking steps for the service of defendant Nos. 3 and 4 in the suit. The Court below was of the view that the plaintiff having failed to take steps for service of the unserved defendants on two earlier dates of hearing i.e., on 14.1.2004 and 20.2.2004, the plaint in the suit was liable to be rejected the correctness of that view has been assailed by the plaintiff before us. 2. Appearing for the appellant, Mr. Bagai strenuously argued that the Trial Court had acted in a hasty and unrealistic manner. He urged that the Trial Court had failed to appreciate that the suit filed by the plaintiff/appellant was against a partnership concern and its partners in which defendant No.1, partnership concern and defendant No.2 who was one of its partners had already appeared. Defendant Nos. 3 and 4 who were none other than the son and the daughter of defendant No.2 and who also happened to be partners in defendant No.1 partnership were, however, deliberately avoiding service only to delay the progress of the suit. He urged that defendant No.2 father had appeared on behalf of his son and daughter, respondent Nos. 3 and 4 in the present appeal as was evident from the order passed by this Court on 7.3.2005. That being so, the nonappearance of defendant Nos. 3 and 4 before the Trial Court was nothing but deliberately intended to prevent a speedy disposal of the claim made by the plaintiff. 3. Alternatively Mr. Bagai urged that since defendant No. 2 had already appeared, the suit could proceed against the partnership as service upon one of the partners was a sufficient service upon the partnership. 4. On behalf of the respondents, it was argued that the present appeal was not maintainable under Section 96 of the Code of Civil Procedure as an order rejecting the plaint was not so appealable. It was also argued by respondent No.2 that the suit filed against the defendants-respondents was vexatious in nature. It was submitted that the appellant tenant had not paid the arrears of rent payable by it nor had it cleared the charges towards electric energy consumed while the premises was in its occupation. It was also argued by respondent No.2 that the suit filed against the defendants-respondents was vexatious in nature. It was submitted that the appellant tenant had not paid the arrears of rent payable by it nor had it cleared the charges towards electric energy consumed while the premises was in its occupation. It was further argued that the failure on the part of the plaintiff to take steps for service of defendant Nos. 3 and 4 in the suit were unjustified and that even when they may be the/children of defendant No.2 and partners in defendant No.1, they were entitled to an independent notice. 5. We have given our careful consideration to the submissions made at the Bar and perused the order under challenge. Before dealing with the submissions on the merit of the controversy, we may dispose of the objection regarding the maintainability of this appeal. Section 2(2) of CPC defines a decree in the following words: "decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question under Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default./I 6. A plain reading of the above would show that rejection of a plaint is a decree within the meaning of the Code and would therefore be appealable under Section 96 of the CPC. The objection to the maintainability of the appeal is thus wholly misconceived and is accordingly rejected. 7. That brings us to the question whether the order under challenge was justified. The material facts in that regard are not in dispute before us. That defendant No.1 is a partnership in which defendant Nos. 2,3 and 4 are partners is not denied. That defendant No.2 is the father of defendant Nos. 3 and 4 is also not disputed. That defendant No. 2 had already appeared in the suit before the Trial Court when the plaint came to be rejected is also a fact that is not in dispute. 2,3 and 4 are partners is not denied. That defendant No.2 is the father of defendant Nos. 3 and 4 is also not disputed. That defendant No. 2 had already appeared in the suit before the Trial Court when the plaint came to be rejected is also a fact that is not in dispute. It is also common ground that defendant No.2 has appeared for defendant respondent Nos. 3 and 4 in this appeal. While it is true that defendant Nos. 3 and 4 were entitled to a notice in their own right the Court cannot lose sight of the fact that they were and continue to be members of the same family living in the same premises. If respondent No. 2 could appear in this Court on behalf of his son and daughter, there is no cogent reason nor was any advanced before us why he could not do so in the Trial Court. In the circumstances, therefore, even when there may have been some default on the part of the plaintiff appellant in taking steps for the service of defendant Nos. 3 and 4, the default was not of a kind that would justify rejection of the plaint straightaway. The Trial Court could and ought to have granted an opportunity to the plaintiff to take steps and penalized it by imposing cost if the default persisted. Rejection of plaint in which the plaintiff claimed a considerable amount of Rs. 7,37,540/ - on the ground that defendant Nos. 3 and 4 had not been served even when the partnership in which they were partners and their father were served and appearing in the suit was, to say the least, an order that was much too harsh to be deserved by the facts of the case. The rejection of the plaint would, in our opinion, result in a gross failure of justice if not upset in appeal. 8. In the circumstances, therefore, we allow this appeal, set aside the impugned judgment and decree and remand the suit back to the Trial Court for being tried and disposed of in accordance with law. Since defendant Nos. 3 and 4 have appeared in this Court, they are directed to appear before the Trial Court either personally or through an authorized agent. The Trial Court shall endeavour to expedite the disposal of the suit. Since defendant Nos. 3 and 4 have appeared in this Court, they are directed to appear before the Trial Court either personally or through an authorized agent. The Trial Court shall endeavour to expedite the disposal of the suit. Parties to appear before the Trial Court for directions on 24.1.2007. Appeal allowed.