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2015 DIGILAW 1727 (RAJ)

Uma Gupta v. Union of India

2015-10-01

J.K.RANKA

body2015
JUDGMENT 1. - Instant appeal has been filed by the defendant-appellants under Order 43, Rule 1 (d) CPC read with Section 104 CPC assailing order dated 12.8.2009 passed by Additional District & Sessions Judge No.1, Ajmer, in Civil Misc. Case No.13/2003, whereby the trial court has dismissed the application filed by the defendant-appellants under Order 9, Rule 13 read with Section 151 CPC, refusing to set aside the ex parte judgment and order dated 6.2.2003 passed in Civil Suit No.46/1998. 2. Brief facts of the case are that the plaintiff-respondent Union of India, filed a suit for declaration on 22.5.1998 before the trial court against one Babulal Gupta, who is husband/father of the defendant-appellants. During pendency of the said suit, Babulal expired and the defendant-appellants, being his legal heirs, were brought on record by the trial court and later-on, vide order dated 5.4.2002 the matter was ordered to be proceeded ex parte against the defendant-appellants. Thereupon the defendant-appellants filed an application on 1.10.2002 for setting aside the ex parte proceedings, but the trial court vide order dated 23.1.2003 dismissed the application under Order 9, Rule 7 CPC , and thereafter passed judgment and decree dated 6.2.2003. The defendant-appellants, thereafter filed an application under Order 9, Rule 13 CPC read with Section 151 CPC before the trial court on 20.3.2003 and the plaintiff-respondent filed reply to the said application on 14.11.2002, praying for dismissal of the application. The defendant-appellants produced AW-1 Rajendra Gupta in their evidence and the plaintiff-respondent produced NAW-1 Harish Mudgal on its behalf. The trial court, however, dismissed the application filed by the defendant-appellants under Order 9, Rule 13 CPC read with Section 151 vide order impugned dated 12.8.2009. Hence the present appeal has been preferred by the defendant-appellants assailing the order dated 12.8.2009 passed by the trial court. 3. Learned counsel for the defendant-appellants contended that work agreement dated 4.10.1977 was executed between Contractor Babulal Gupta, husband of appellant no.1, and respondent-plaintiff Union of India. Disputes arose between the Union of India and the Contractor, and an Arbitrator was appointed in the matter. The award dated 4.2.1984 was received by the learned District Judge, Ajmer, by post on 30.3.1992 for making the award rule of the court, whereupon notices were issued to the Union of India. Disputes arose between the Union of India and the Contractor, and an Arbitrator was appointed in the matter. The award dated 4.2.1984 was received by the learned District Judge, Ajmer, by post on 30.3.1992 for making the award rule of the court, whereupon notices were issued to the Union of India. After service of notice, counsel for the Union of India appeared in such proceedings and sought time to file objections and on 11.2.1993 filed an application on behalf of the Union under Section 14 of the Arbitration Act read with Section 151 CPC stating therein that award was not filed legally, but the learned District Judge, Ajmer, rejecting the application made the award rule of the court and passed a decree accordingly on 15.2.1993. The said order was assailed by the Union in S.B. Civil Misc. Appeal No.501/1993 before this court raising that the decree passed by the District Judge, Ajmer, was bad in law inasmuch as the award was already challenged by the Union before the Delhi High Court by filing a petition under Sections 14 and 17 of the Arbitration Act, which was registered as Suit No.1473 A/1984, and notices were issued by the Delhi High Court and an order was passed by the Delhi High Court on 10.1.1989, and thus the Arbitrator had committed gross illegality by suppressing the material fact that original award was already lying with the Delhi High Court, and by sending a copy of the award in the Court of District Judge, Ajmer. 4. This Misc. Appeal came to be decided by this Court on 19.5.1997 wherein the Union was given liberty to institute a civil suit for setting aside the decree passed by District Judge, Ajmer, on the basis of award dated 4.2.1984. 5. Availing the liberty so granted, the Union instituted a suit for declaration against Babulal Gupta, husband of appellant no.1, and father of appellant no.2 herein. The aforesaid suit was decreed ex parte on 6.2.2003, upon which on 20.3.2003 an application under Order 9, Rule 13 read with Section 151 CPC was preferred by the appellants herein, for setting aside the judgment and decree, and the same was registered as Civil Misc. The aforesaid suit was decreed ex parte on 6.2.2003, upon which on 20.3.2003 an application under Order 9, Rule 13 read with Section 151 CPC was preferred by the appellants herein, for setting aside the judgment and decree, and the same was registered as Civil Misc. Case No.13/2003 before the Additional District & Sessions Judge No.1, Ajmer, wherein both the parties led evidence in support of their cases, however, the learned court being dissatisfied with the reasoning offered by the appellants, rejected their application under Order 9, Rule 13 read with Section 151 CPC. Being aggrieved by this order, the appellants are before this court. 6. Learned counsel for the appellants vehemently contended that the impugned order is perverse, arbitrary and bad in law, and hence deserves to be quashed and set aside. He submitted that one Mr. Dinesh Dadhich was entrusted by the appellants to seek date and appoint Mr. Sunil Kaushik, Advocate, as their counsel in the Ajmer court on 2.2.2002. He submitted that Dinesh Gupta left the services and in April and May 2002 the appellants remained occupied in illness of her mother and hence were unable to receive information of the ex parte court proceedings and only on 30.9.2002 Dinesh Dadhich informed that he was neither able to attend the court on 5.4.2002 nor able to contact Mr. Sunil Kaushik, Advocate. He further submitted that immediately upon receipt of such information, the appellants moved an application on 1.10.2002 for setting aside the ex parte order on 5.4.2002 but the court dismissed the same on 23.1.2003 and illegally passed an ex parte decree on 6.2.2003. He submitted that the court below has failed to appreciate the factual matrix in correct perspective and overlooked the fact that the appellants were vigilant in prosecution of the case and there was sufficient reason for their non appearance. He further submitted that the approach adopted by the court below was highly technical, which has resulted in gross and grave injustice. In support of his contentions he relied upon the judgment of Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 . 7. Per contra learned counsel for the respondent-Union vehemently opposed the contentions raised by the appellants and contended that there was no perversity or arbitrariness in the impugned order. In support of his contentions he relied upon the judgment of Arjun Singh v. Mohindra Kumar AIR 1964 SC 993 . 7. Per contra learned counsel for the respondent-Union vehemently opposed the contentions raised by the appellants and contended that there was no perversity or arbitrariness in the impugned order. He further submitted that a detailed trial was undertaken by the court below whereupon it was found that the case set up by the appellants was based on falsehood and lack of bona fides, and hence urged to dismiss the appeal. He relied upon the judgment of Parimal v. Veena @ Bharti 2011 (3) SCC 545 . 8. Heard the rival contentions raised at the Bar and carefully perused the material available on record. 9. Mr. Rajendra Gupta, appeared in evidence as AW-1 before the trial court. He admitted that his father died on 26.7.2000 and further that Mr. Dinesh Dadhich who was entrusted to seek date and appoint Mr. Sunil Kaushik, as Advocate, was under his employment, but no record regarding the same was produced. Affidavit of Mr. Sunil Kaushik, Advocate, and Mr. Dinesh Dadhich, were also not produced. AW-1 admitted that Mr. Dinesh Dadhich left services on 15.3.2002, but still he did not choose to seek information of the court proceedings from Mr. Sunil Kaushik, Advocate, or Mr. Dinesh Dadhich. Decree was passed on 6.2.2003, almost 11 months after Mr. Dinesh Dadhich left services, and the defendants were not able to satisfy what prevented him to seek information of the court proceedings for a long period of 11 months. A cumulative assessment of the evidence and relevant material on record, the trial court concluded that there was no sufficient cause or reasons to set aside the decree, rather the case set up by the defendants lack bona fides, and was based on falsehood. This court concurs with the opinion of the trial court and is unable to find any sufficient or cogent or just and proper reason for the defendants' non appearance. The judgment relied upon by the learned counsel for appellants in the case of Arjun Singh v. Mohindra (supra), is wholly inapplicable to the facts and circumstances of the case. This court concurs with the opinion of the trial court and is unable to find any sufficient or cogent or just and proper reason for the defendants' non appearance. The judgment relied upon by the learned counsel for appellants in the case of Arjun Singh v. Mohindra (supra), is wholly inapplicable to the facts and circumstances of the case. It is not denied that the order passed under Order 9, Rule 7 CPC cannot operate as res judicata in subsequent application filed under Order 9, Rule 13 CPC, but both, under Order 9, Rule 7 CPC and under Order 9, Rule 13 CPC, "sufficient cause" has to be assigned by the party to set aside the order. "Sufficient cause" means that the party had not acted in a negligent manner or there was want of bona fide on its part, or the party cannot be alleged to have been "not acting diligently" or "remaining inactive". [refer Parimal v. Veena @ Bharti 2011 (3) SCC 545 ] 10. The appellants failed to assign any "sufficient cause", for their non-appearance which was concluded by the trial court by a detailed scrutiny of evidence and material available and this court does not find any perversity, arbitrariness or capriciousness in the same, calling for any interference. Resultantly, the appeal being devoid of merits, is liable to be dismissed which is hereby dismissed. Costs made easy.Appeal dismissed. *******