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2007 DIGILAW 434 (DEL)

RAMA KRISHNA EXPORTS v. BHARAT KUMAR SETH

2007-02-28

J.M.MALIK

body2007
JUDGMENT J.M. Malik, J.-The Trial Court dismissed the application moved under Order 9 Rule 13, CPC. Aggrieved by that order, the present appeal has been preferred. The respondent No. 1/plaintiff had filed a suit for recovery of Rs. 2,64,971.02 against all the appellants/defendants and Rakesh Kumar, respondent No. 2/defendant No.4, who was arrayed as proforma respondent in this appeal, on 30.3.1995. It may be mentioned here that M/s. Rama Krishna Exports, appellant No.1 is a partnership firm and Smt. Saroj Devi (now deceased), appellant No.2, Krishna Kumar, her son appellant No.3 and Rakesh Kumar respondent No.2 were the partners of M/s. Rama Krishna Exports. On 28.10.1996, memo of appearance was filed on behalf of Rakesh Kumar respondent No.2. On 26.2.1997, written statement was filed on behalf of Rakesh Kumar. Appellant Nos. 2 and 3 were proceeded against ex parte as they were deemed to have been served vide order sheet dated 17.7.1997. All the remaining defendants were proceeded against ex parte vide order passed on 10.8.1998 as they were deemed to have been properly served. As a matter of fact, Krishna Kumar, M/s. Rama Krishna Exports and Smt. Saroj Devi had refused to accept the notice served through the Regd. AD, the addresses were admittedly correctly mentioned therein. It, thus, clearly proves that the appellants were served in accordance with law and they were rightly proceeded against ex parte vide order passed on the above said dates. The registered lettets also go to show that they were directed to appear before the Court on 18.12.1995, the date fixed in this Court, but they absented. 2. The record also goes to show that the issues were framed on 21.9.1998. Order sheet dated 17.7.1997 goes to show that although, there were three respondents but the plaint itself mentioned Smt. Saroj Devi and Krishna Kumar as defendant No.2 and Rakesh Kumar as defendant No.3. Order sheet dated 17.7.1997 goes to show that for Rakesh Kumar necessary correction was made and he was shown as defendant No.4. Whatever the case may be, Rakesh Kumar, defendant No.3 or defendant No.4, who was being represented by Mrs. Jaswinder Kaur, Advocate, was also proceeded against ex parte vide order dated 19.7.1999. Ex parte judgment was passed on 24.7.1999. 3. Whatever the case may be, Rakesh Kumar, defendant No.3 or defendant No.4, who was being represented by Mrs. Jaswinder Kaur, Advocate, was also proceeded against ex parte vide order dated 19.7.1999. Ex parte judgment was passed on 24.7.1999. 3. In application moved under Order 9 Rule 13 read with Section 151, CPC, it is stated that Rakesh Kumar defendant No.4 represented to defendant No.2 Smt Saroj Devi that he would look after the case and engage a Counsel to present the case before the Court of law in a proper way. The fees was paid to Shri Rakesh Kumar to engage a lawyer and defend the case. Defendant No.4 engaged a Counsel and represented them before the Court but after the passage of time, the defendant No.4 played mischief/fraud against the defendant Nos. 2 and 3 which was never conveyed by defendant No.4 to defendant Nos. 1,2 and 3. It is also explained that at that time defendant No.2 was seriously ill and suffering from Rheumatoid Arthritis for which she was subsequently operated in the AIIMS. Consequently, defendant No.4 took over the responsibility. Defendant No.2 also came to know that an ex parte decree had been passed against her but because of her illness she was unable to engage any lawyer. Krishna Kumar, defendant No.3 was out of the country for about three years in order to earn his livelihood. Defendant No.3 came to India and immediately inspected the file. Consequently, the application under Order 9 Rule 13 was not typed on 10.11.2000 and was presented in the Court on 5.12.2000. It is, therefore, clear that application for condonation of delay was filed after about 18 months from the passing of the decree. The application was dismissed by the Trial Court. 4. In this appeal, the appellants have filed true copies of the medical prescriptions/discharge slips of various hospitals. Their details are as follows. There is Safdarjung Hospital prescription dated 1.3.1997. The patient was admitted to St. Stephen Hospital from 23.6.1997 to 25.6.1997 for a period of two days. There is Out Patient Department prescription issued by AIIMS, which was issued on 8.8.1997. Kaya Maya Ayurvedic Hospital and Research Centre has also issued a prescription dated 14.4.1999. There is another Out Patient Department prescription issued by AIIMS on 5.10.1999. The patient was admitted to St. Stephen Hospital from 23.6.1997 to 25.6.1997 for a period of two days. There is Out Patient Department prescription issued by AIIMS, which was issued on 8.8.1997. Kaya Maya Ayurvedic Hospital and Research Centre has also issued a prescription dated 14.4.1999. There is another Out Patient Department prescription issued by AIIMS on 5.10.1999. Next is prescription slip of AIIMS dated 15.1.2000 which goes to show that patient was admitted on 15.1.2000 and was discharged on 7.3.2000. Photocopy of prescription by Om Hospital and Research Centre (P) Ltd., Kamalpokhari, Kathmandu, Nepal was also appended with the application under Order 9 Rule 13, CPC which goes to show that a son was born to Krishna Kumar on 14.7.1998. 5. Mr. Rameshwar Prasad, appellant No.2 argued that under these circumstances, it was not possible for Saroj Devi to contest the above said case. He has also drawn my attention towards an authority reported in Susheel Kumar Sabharwal v. Gurpreet Singh, III (2002) SLT 510= (2002) 5 SCC 377 , wherein Apex Court was pleased to hold that the Court before exercising its discretion of passing ex parte decree must be satisfied that due service of summons was proved. It was further held that summons has to be duly served in due time. In that case, due to non-service of the summons in accordance with law, ex parte decree was ordered to be set aside. However, it is difficult to comprehend as to how this authority goes to support the appellants, it rather goes against them. 6. Rameshwar Prasad, LR of appellant No.2 laid emphasis on peripheral matters and did not touch the heart of the problem. The appellants have failed to show that on any of the dates fixed by the Court the appellant Saroj Devi was sick. It may be recalled that the case was filed in the Court on 23.3.1995. The following dates were fixed by the Court: "25.5.1995, 23.11.1995, 18.12.1995, 13. 3.1996, 16.4.1996, 16.7.1996, 28.10.1996, 11.12.1996,26.2.1997, 19. 3.1997, 17.7.1997, 17.9.1997, 23.12.1997,26.2.1998, 15.4.1998, 20. 7.1998,4.8.1998,10.8.1998, 21.9.1998,11.11.1998,11.2.1999, 22.3.1999,19.7.1999,24.7.1999." 7. The appellant story remains opaque despite explanation. The learned Trial Court gave short shrift to all these contentions and did not listen to the eye-wash. It is noteworthy that the appellants did not mention the date, month or year in the application as to when Saroj Devi became ill, had to be hospitalised and was discharged. 7.1998,4.8.1998,10.8.1998, 21.9.1998,11.11.1998,11.2.1999, 22.3.1999,19.7.1999,24.7.1999." 7. The appellant story remains opaque despite explanation. The learned Trial Court gave short shrift to all these contentions and did not listen to the eye-wash. It is noteworthy that the appellants did not mention the date, month or year in the application as to when Saroj Devi became ill, had to be hospitalised and was discharged. The dates given by the appellants, while read in juxtaposition with the dates given by the Courts, are entirely different. It is surprising to note that Saroj Devi, appellant, did not take the trouble to mention the date when she became aware of the passing of the decree. Again, not even an approximate date was mentioned. It is also difficult to fathom as to when did her son Krishna Kumar leave for Nepal and when did he come back to India. Their pleadings are vague, evasive and lead the Court nowhere. 8. Moreover, no evidence was adduced to show that Rakesh Kumar was in Nepal during the crucial/relevant time or it was impossible to send him any communication or due to unavoidable circumstances he could not come to India. Moreover the application under Order 9 Rule 13, CPC was got typed on 5.1 1.2000 but there was inordinate delay of24 days in moving it before the Court. Smt. Saroj Devi was aware of the fact that she was proceeded against ex parte vide orders dated 17.7.1997/10.8.1998. Rakesh Kumar had been appearing in the Court. It must be borne in mind that he was a partner of the firm. Although, there is sufficient evidence on the record that the partners as well as the firm were served in accordance with law, yet service and appearance in Court of one partner should be deemed to be service and appearance on the part of all the partners. 9. Lastly, it was not explained as to when Rakesh Kumar, the co-partner played fraud with his other partners and particularly Saroj Devi. There is no inkling in the evidence on the record that a police report was lodged against him or any legal action was initiated against him. Such like stories can be minted at any time. 10. Now, I turn to the merits of this case. The appellant Rameshwar Prasad has also drawn my attention towards few facts. He pointed out that they had returned the goods worth Rs. Such like stories can be minted at any time. 10. Now, I turn to the merits of this case. The appellant Rameshwar Prasad has also drawn my attention towards few facts. He pointed out that they had returned the goods worth Rs. 1,10,000/-, as is apparent from the photocopy of the receipt filed by him on the record at page 51C, which goes to reveal that goods were returned to M/s. Shiv Knit Works on 3.3.1994. However, Shiv Knit Works company is not a party in this case. The Counsel for the respondent pointed out that Shiv Knit Works is a separate entity, which has no connection with the present case. Moreover, the above said document was not proved in accordance with law. Under these circumstances, I clap no importance to this argument. 11. The next submission made by the appellants was that they had also returned goods worth Rs. 13,000/- but they did not have any proof. Without proof, the Court cannot pass any order in favour of the appellants. The appeal is without merit and the same is, therefore, dismissed. CM No. 1118/2001 In view of the dismissal of the appeal, no further orders are required to be passed in this application and the same is dismissed. Appeal dismissed.