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2006 DIGILAW 2254 (RAJ)

Sensport Intenational v. Alwar

2006-07-18

R.S.CHAUHAN

body2006
Judgment R.S. Chauhan, J.-Sleeping over his rights, confronted with an execution proceeding, the appellant challenged the ex-parte order after a lapse of seven years, hoping to put back the historical clock to year 1999. Such a belated effort has been rejected by the Additional District Judge No. 1, Alwar vide his order dated 11.05.2006. Hence this appeal before us. 2. The brief fact of the case are that respondent-plaintiff No. 2 M/s. Modern Syntex (India) Ltd. entered into a contract with respondent-defendant No. 1 Mourne Clothing Co. Ltd. for supplying cloth to the Respondent No. 1. The appellant was actively involved in the procurement of the cloth and the payment thereof to the respondent-plaintiff . Thus, the appellant acted as an agent of the respondent dependent No. 1 Till 1994 the payments were regularly made. However, thereafter certain disputes arose between the parties with regard to the quality of the cloth being supplied. Despite the fact that subsequently the quality of the cloth was found to be as per the specifications, the payment for the next six transactions were withheld by the Respondent-defendant No. 1 and the appellant. Therefore, the respondents-plaintiff filed a civil suit against Respondent-defendant No. 1 and the appellant, who was arrayed as Defendant No. 2 on 20.05.1996. Between the years 1996 to 1999, three different Counsels appeared before the Court on behalf of the appellant, namely Shri Satyadev Sharma, Shri Vinay Sharma and Shri S.N. Gupta. It is pertinent to point out that Shri Satyadev Sharma filed his Vakalatnama on behalf of both the defendants in the case. The reply on behalf of appellant was also filed. Subsequently, the matter was listed for framing of issues on two occasions, namely on 111.1998 and 11.03.1999. It seems that on the next date on 08.04.1999 no Counsel appeared on behalf of the appellant. On 14.05.1999 i.e. on the next date again no one appeared on behalf of the appellant. Therefore, the learned judge had no option but to proceed ex-parte against the appellant From 14.05.1999 to 211.1999 no one appeared on behalf of the appellant and the proceedings continued ex-parte. However, on the next date on 012.1999 a brief-holder Advocate did appear on behalf of the appellant. But no application for setting aside the ex parte proceeding was moved. Therefore, the learned judge had no option but to proceed ex-parte against the appellant From 14.05.1999 to 211.1999 no one appeared on behalf of the appellant and the proceedings continued ex-parte. However, on the next date on 012.1999 a brief-holder Advocate did appear on behalf of the appellant. But no application for setting aside the ex parte proceeding was moved. The ex parte proceedings continued from 112.1999 till 16.01.2003, but it seems that no one contested the matter on behalf of the appellant. And no one moved an application for setting aside the ex-parte order dated 14.05.1999. Eventually on 16.01.2003 the Judgment and decree were passed ex-parte against the defendants. It is the case of the appellant that when the execution proceedings were initiated against it in the NOIDA Court, it was informed by someone from the NOIDA Court about the said proceedings. According to the appellant, it rushed to Alwar and obtained a certified copy of the case proceedings and the orders on 21.03.2006 which were given to it on 21.03.2006. Thereafter, the appellant moved an application under Order 9 Rule 13 and Section 151, CPC praying for setting aside ex-parte order dated 16.01.2003. However, vide order dated 15.2006 the learned Judge dismissed the said application. 3. Mr. Mahesh Sharma, the learned Counsel for the appellant, has vigorously argued that the appellant is a company which is registered in England and Mr. R.S. Senghera is a resident of England. Mr. Senghera had entrusted the case to Mr. Satyadev Sharma, a lawyer practicing in Dehli. Mr. Sharma had assured the appellant that they will be informed about the progress of the case as and when necessary. However, it seems that Mr. Sharma hardly took any interest in the said case. Because of the negligence of the learned Counsel, the ex-parte order was passed on 14.05.1999 and eventually an ex-parte decree was passed on 16.01.2003. According to Mr. Mahesh Sharma the appellant cannot suffer for the fault of the Counsel. He has further submitted that the appellant is willing to pay exemplary cost provided the case is remanded to the trial Court and he is given an opportunity of hearing. The learned Counsel has further contended that the Court deviated from the established procedure. Initially it fixed the case for framing of issues. He has further submitted that the appellant is willing to pay exemplary cost provided the case is remanded to the trial Court and he is given an opportunity of hearing. The learned Counsel has further contended that the Court deviated from the established procedure. Initially it fixed the case for framing of issues. But subsequently, instead of framing the issues, it erroneously recorded that no written statement had been filed by the Defendant No. 2. Such an observation is not only factually incorrect, but is also belied by the record, for, the Defendant No. 2 had already submitted the written statement which was readily available on record. Instead of framing the issues as warranted by the Civil Procedure Code, the trial Court decided to proceed ex-parte against the appellant and to record evidence. Therefore, the learned trial Court has failed to exercise a jurisdiction vested in it and has illegally proceeded ex-parte against the appellant. Hence, the ex-parte decree should be set aside and the case should be remanded to the trial Court for re-commencing from the point of framing of the issues. 4. On the other hand, Mr. Paras Kuhad, learned Counsel for respondent-plaintiff , has strenuously argued that Order 9 of CPC deals with the consequence of the non-appearance of the parties. While Order 9 Rule 7 deals with setting aside of an order during the pendency of the proceedings, Order 9 Rule 13 deals with the setting aside of the ex-parte decree against the defendant. He has further submitted that the present case is one under Order 9 Rule 13 and not under Order 9 Rule 7, CPC. Furthermore according to him Article 128 of the Limitation Act applies to Order 9 Rule 13 of CPC. According to the said Article, the period of limitation starts from the date of the decree and not from the date of the knowledge of the defendant. According to the learned Counsel, the application for setting aside the ex-parte decree was submitted hopelessly beyond the period of limitation. The said application, in fact, should have been rejected on this ground alone. 5. The second contention of the learned Counsel is that the appellant has taken a stand which is belied by the record itself . According to the appellant he had hired the service of only Satyadev Sharma, whereas Vakalatnamas were filed not only by Mr. The said application, in fact, should have been rejected on this ground alone. 5. The second contention of the learned Counsel is that the appellant has taken a stand which is belied by the record itself . According to the appellant he had hired the service of only Satyadev Sharma, whereas Vakalatnamas were filed not only by Mr. Satyadev Sharma but also by Mr. Vinay Sharma and by Mr. S.N. Gupta on behalf of the appellant. Therefore, the story concocted by the appellant that he is suffering because of the negligence of a single Counsel is a figment of imagination. The third contention raised by the learned Counsel is that according to Order 9 Rule 13 CPC, it is for the applicant to satisfy the Court about the sufficiency of cause for non-appearance when the suit was called for hearing. In the present case no such “sufficient cause” has been shown for the non-appearance of the appellant during the proceedings. Although the appellant claims to be a resident of England, the physical distance would not preclude him from being in consistent touch with his Counsel in India. Since a large sum of Rs. 25,51,182/-alongwith interest of 24% was involved, the appellant should have been vigilant enough to defend his interest before the Court. For seven long years it slept over its rights. It is only when it is faced with an execution proceeding that it rushed to the Court for protection. However, there is no sufficient cause for its silence for almost a decade. The feable justification offered by the appellant that Mr. Satyadev Sharma had expired and, therefore, he was unable to seek the file of the case is belied by the fact that Mr. Sharma expired two years after the passing of the ex-parte decree and Judgment . The case was decided on 16.01.2003, whereas Mr. Sharma expired on 01.06.2005 Thus, at the conclusion of the civil proceedings Mr. Sharma was still alive and in practice. Fourthly, the learned Counsel has argued that the appellant cannot take the benefit of its own negligence and cannot seek setting aside of the decree in absence of any sufficient cause. Lastly, he has argued that till the filing of the reply Mr. R.S. Senghera was actively involved with the Court proceedings as the reply and other application submitted by him were signed by him. Lastly, he has argued that till the filing of the reply Mr. R.S. Senghera was actively involved with the Court proceedings as the reply and other application submitted by him were signed by him. However, in the order to avoid the recovery of the amount, initially the Defendant No. 1 dropped out of the case, and eventually the appellant stopped appearing before the Court. According to the learned Counsel this is a well known strategy adopted by the clever litigant in order to escape the liability of recovery of money. By setting aside the ex-parte decree, the Court would only be encouraging the unscruplulous litigant to follow such a stratagem. 6. We have heard the learned Counsels for both the parties and have perused the record which was submitted by the parties and have examined the impugned order. 7. Order 9, CPC deals with appearance of parties and consequence of non-appearance. Order 9 Rule 7, CPC Reads as under:-“Where the Court has adjourned the hearing of the suit ex-parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court direct as to costs or otherwise, be heard in answer to the suit as if he had appeared for the day fixed for his hearing.” Obviously Rule 7 deals with setting aside of the ex-parte order while the suit is still pending. Order 9 Rule 13, on the other hand, is as follows:-“Setting aside decree ex parte against defendants-In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that the was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendant also: Provided further that no Court shall set aside a decree passed ex pate merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff claim.” Clearly, Rule 13 deals with a situation wherein an ex-parte decree has been passed after the conclusion of the trial. However, whereas Rule 7 demands that the defendant should be able to show “good cause” for his previous non-appearance, Rule 13 dictates that “sufficient cause” for non-appearance should be shown by the defendant. In the case of Arjun Singh vs. Mahendra Kumar & Ors., AIR 1964 SC 993 , their Lordships of the Honble Supreme Court had an occasion to interpret the two phrases good cause and sufficient cause as contained in Order 9 Rule 7 and Rule 13. Their Lordships were of the opinion that:- “There is no material difference between the facts to be established for satisfying the two tests of “good cause” and “sufficient cause”. There cannot be a “good cause” which is not “sufficient” as affording an explanation for non-appearance, nor conversely a “sufficient cause” which is not a good one and further either of these is not different from “good and sufficient cause” which is used in this context in other statutes. There cannot be a “good cause” which is not “sufficient” as affording an explanation for non-appearance, nor conversely a “sufficient cause” which is not a good one and further either of these is not different from “good and sufficient cause” which is used in this context in other statutes. If , on the other hand, there is any difference between the two, it can only be that the requirement of a “good cause” is complied with on a lesser degree of proof than that of “sufficient cause¨ assuming the applicability of the principle of res judicata to the decisions in the two proceedings, if the Court finds in the proceeding under Order 9 Rule 7 the lighter burden not discharged, it must a fortiori bar the consideration of the same matter in the later proceedings under Order 9 Rule 13 where the standard of proof of that matter is, if anything higher.” Thus, a higher proof of sufficiency of the cause has to be demonstrated before the defendant can expect the Court to set aside an ex-parte decree. 8. The relationship between an advocate and a client is a sacred one. It is a relationship of trust and of responsibility. However, merely because the litigant has entrusted his case to an advocate it does not absolve the litigant from the responsibility of following the progress of the case through his advocate. Since it is the interest of the litigant which is involved, it is his duty to defend his interest with due diligence and promptness. He cannot afford to sleep like Rip Van Winckle for it is a well known principle of law that the Courts do not come to rescue of those who sleep over their rights. The issue whether the negligence of an advocate in not pursuing the case of the client is a sufficient cause or not for setting aside an ex-parte decree was considered by the Honble Supreme Court in the case of Salil Datta vs. T.M.C. Pvt. Ltd., 1993 (2) SCC 185 . The Apex Court clearly held:- “The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. The Apex Court clearly held:- “The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. Though in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanor of the advocate where it finds that the client was an innocent litigent but there is no such absolute rule that a party can disown its advocate at any time and seek relief . No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely diffcult." Distinguishing the case of Rafiq vs. Munshilal, 1981 (2) SCC 788 their Lordships clearly held that an educated businessman involved in a civil proceeding is duty bound to follow the progress of the case through his advocate. In the present case the appellant claims to be a businessman settled in England and yet claims that he was unaware for the progress of the case. The record reveals that the reply was filed under his guidance and supervision. In order to protect his interest he had hired the services of not just one lawyar, but the services of three lawyers. Therefore, he was certainly eager and vigilant for protecting his own interest. However, it seems that the longer the proceedings continued, the less interested he became in contesting the case for reasons best known to him. Initially both the Defendant No. 1 and appellant were represented by the same Counsel, namely Mr. Satyadev Sharma. Defendant No. 1 stopped defending the case in the first instance, and the appellant quietly walked away from the Court in the second instance. 9. The appellant has vehemently argued that he lost track of the case because of the death of Mr. Satyadev Sharma, but such a justification is belied by the fact that Mr. Satyadev Sharma expired two years after the completion of the civil proceedings. While the ex-parte decree was passed in 2003 Mr. Satyadev Sharma expired in 2005. 9. The appellant has vehemently argued that he lost track of the case because of the death of Mr. Satyadev Sharma, but such a justification is belied by the fact that Mr. Satyadev Sharma expired two years after the completion of the civil proceedings. While the ex-parte decree was passed in 2003 Mr. Satyadev Sharma expired in 2005. Considering the fact that the appellant is an educated business man living in England, where the litigants constantly follow the progress of the case by being continuously in touch with the Counsels, it was also expected that the appellant would be vigilant about his case in India. The tele-communication revolution has made it easy for a litigant to be in touch with his Counsel, no matter where he resides. Therefore, the fact that the appellant lived in England would not prevent him from following the case in India. Thus, the justification given by the appellant is a mere excuse and not "a sufficient" cause for setting the ex-parte decree. 10. The learned Counsel for the appellant has relied on the case of N. Balakrishnan vs. M. Krishnamurty, AIR 1998 SC 3222 in order to argue that "in every case of delay there can be some lapse on the part of the litigent concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor," However, simultaneously, the Honble Supreme Court has also held in the same case that "But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation." Moreover in the case of Salil Dutta (Supra) as quoted above, in case a litigant is permitted to blame the advocate for the ex-parte decree, it would make the system extremely difficult. 11. For reasons stated above we are not inclined to accept the explanation offered by the appellant in the impugned order dated 11.02.2006 the learned Judge validly noted that between 14.05.1999 and 16.01.2003, the case was listed thirty-four times and yet on no occasion was an application moved under Order 9 Rule 7, CPC for setting aside the ex-parte proceedings. 11. For reasons stated above we are not inclined to accept the explanation offered by the appellant in the impugned order dated 11.02.2006 the learned Judge validly noted that between 14.05.1999 and 16.01.2003, the case was listed thirty-four times and yet on no occasion was an application moved under Order 9 Rule 7, CPC for setting aside the ex-parte proceedings. It is only after three years two months from the date of passing of the ex-parte decree that an application came to be filed. Thus in total the application under Order 9 Rule 13 was filed 7 years after the proceedings were turned into an ex-part proceedings. It is indeed surprising that in a case involved large sum of money, the appellant has not taken any keen interest for seven long years. The learned Judgs has given valid reasons for dismissing the application under Order 9 Rule 13, CPC. Therefore, there is no illegality or perversity in the impugned order in the result, the appeal has no merit. It is hereby, dismissed.