Dalhousie Properties Limited vs Rameshwar Properties, Pvt. Ltd. and Others

Amitava Lala, J.—This is an application under Order 9 Rule 13 of the Code of Civil Procedure. The scope and ambit of the aforesaid provision is that 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 he was prevented by any sufficient cause from appearing when the suit was called for hearing, the court shall pass an appropriate order setting aside the decree. According to the petitioner, this is a case where it was prevented by sufficient cause. Therefore, two material aspects are necessary to qualify and come to an appropriate conclusion i.e. (a) Decree was passed ex parte; (b) The petitioner was prevented by sufficient cause in appearing when such suit was taken up for hearing. The instant suit is an "undefended suit" in which the defendant did not choose to file its written statement upon entering appearance and the decree was passed. Therefore, such decree, can be construed as decree ex parte. There is a gulf of difference between the suit heard by a court under the category of "undefended suit" in which one did not choose to enter appearance or did not choose to file written statement and the suit, in which a litigant was prevented from appearing when the same was called on for hearing. If a decree is passed, in the second case, the same ought to be construed as decree passed exparte, but if a decree is passed in the first case, the same cannot be construed decree exparte. Therefore, the very foundation of Order 9 Rule 13 of the CPC is inapplicable herein. One is voluntary action and other is involuntary action. If one prevents himself voluntarily the same can not be equated with the prevention by sufficient cause involuntarily. Usual grammatical meaning cannot necessarily be equated with legal meaning.

Filing of the written statement is not only an obligation on the part of the Advocate alone but also on the part of the defaulting party who will have to verity such written statement before filing the same. Diligence of the litigant is prime consideration specially in hearing suit unlike writ or appeal where litigant''s presence may not be so important. Bare statement of the defaulting litigant cannot be put upon the shoulder of his advocate. There is also a serious lapse on the part of the Advocate whom such party has engaged. There is an obligation on the part of an advocate in discharging the duties before the Court of Law on behalf of his client since he was then acting as an agent of the litigant by whom he was entrusted to perform duties. But, that does not necessarily mean, specially in hearing the suit, the litigant will sit tight over the matter. Chasing litigants are always given credence by the Court. The petitioner is a Company having its registered office at Calcutta. A company cannot run without persons having legal knowledge. In other words such a company can not be said as lay clients in the eye of law in view of the judgment reported in State of Madhya Pradesh and Others Vs. Dr. (Mrs.) Sumedha Gajendragadkar and Another, by which earlier logic was overruled.

Moreover the practice of the Court is that in hearing suits always more than one counsel should be engaged so that there can not be any delay or defeat the cause in absence of any one of the counsels. Such concepts, idea, tradition, practice are gradually diminishing in front of high rise of writ oriented concept. Quantity is gradually encroaching the field of quality. As a result whereof when trouble comes one faces the consequences. In the instant case, the cause of action has been made out in paragraph 10 of such petition about absence of one of the Advocates. According to the petitioner, learned Advocate was waiting in the court room at about 12.45 p.m. but he proceeded to another Court in attending a matter. Even particulars of that matter has been given in paragraph 10 of the petition by the petitioner himself as true to knowledge. But, surprisingly he has also stated as true to knowledge that the suit was taken up and decree was passed as against defendant no. 1 when one of the Learned Advocates for it prayed for adjournment which was refused. Even the order under which the suit was decreed has not been annexed. This is the sole explanation for the purpose of setting aside the decree. Records says that one other Advocate appeared but the suit was decreed against this defendant no. 1 petitioner by treating the same as undefended suit. Even on this account the decree can not be said to be ex parte. No explanation is given about him/her as to why she has not proceeded with the matter instead of asking adjournment. It appears that the petitioner has not come with clean hands. Therefore, the petitioner cannot earn any sympathy from the Court of Law. In further the explanation is given in respect of an Advocate but surprisingly no explanation is given about presence or absence of the Ld. Advocate-on-record Mr. Sajal Kr. Das in the petition.

Therefore, in total a bare explanation is given about absence of an Advocate as true to knowledge. No explanation about the Advocate present before the Court. No explanation is given about the Advocate-on-record.

If I go with the ratio of the judgment as cited by Mr. Mallick, the Learned Counsel appearing on behalf of the petitioner, reported in Shyam Lal Dhar Vs. Ply Board Industries, that neglect or failure on the part of the Counsel constitutes a sufficient cause for non-appearance of the defendant within the meaning or Order 9 Rule 13 of the CPC then it will have to be dependable upon the circumstances. A casual and reckless statement is not the footstep to take a stand of such ratio. Every case has its own view point. The legal principle has to be applied in an appropriate situation. If the facts are dissimilar with the other, such ratio cannot be applied. An explanation has to be given about such Advocate-on-record whom the litigant engaged. The litigant''s privity only lies with him. Therefore, the very foundation of the case is unavailable here. To which Counsel Mr. Das the Advocate-on-record has engaged as his senior can not be the basic foundation for restoration of a suit, or a matter. Need of engagement of an Advocate-on-record is necessary for presence but need of engagement of counsel or senior above him is necessary for eloquence. Both are distinct and different. If the counsel becomes present and respond to the Court the same will be definitely good enough but that does not necessarily mean that when such counsel left the Court, the Court will be unrepresented. The explanation as to the conduct of the Advocate-on-record in respect of such situation is very vital. It is necessary for the Court to know what he did exactly at the time when the suit was called on and how the litigant was prevented by any sufficient cause on his account for applying the test of agency of an Advocate-on-record. Therefore, a mere bold statement that one of the Advocates has gone to some other Court for any professional work cannot be construed as sufficient ground for the purpose of recalling the decree passed by the Court.

The application is totally misconceived in nature. No annexure is made as regards the passing of decree in connection thereto which is required document and gives cause of action but has subsequently handed over by the respondent/plaintiff from which I come to know that such decree was passed even in merit Therefore, the further question came before this Court that when the decree was passed on hearing the parties on merit and thereafter giving further opportunities to establish true discharge and satisfaction of such decree in the Court of execution why the Court will interfere with the same at all. The Court when hearing the matter in absence of one of the parties, is in a much more onerous position either to pass a decree or order in merit or in default. If it is in default then it will be construed that the Court did not apply his mind. But when it has been disposed of in merit by performing the onerous duty giving the fullest protection to the defaulting party, any further ground cannot be construed as a sufficient ground for recalling the decree or order as passed earlier.

Mr. Mallick has stated that whenever the matter is dismissed it can be construed as dismissed for default or in merit, but when a decree or order is passed against him in his absence it makes no difference. I am sorry to say that I am not agreeable with the view point of Mr. Mallick because it will be reflected from the judgment and decree or order itself. It has exactly happened in the present case. It is needless to say that any one of the parties has to pay the corporation rates and taxes but the accountability i.e. how much will be paid, quantum etc. can be kept open for the purpose of decision of the executing Court. Therefore, there is no reason to believe why such decree will not be passed as against a defaulting party who did not file a written statement. Mr. Mallick further contended that although he has not filed any writted statement but his right to cross-examine remains. Therefore non filling of the Written Statement can not be a ground for passing decree ex parte. With due respect to Mr. Mallick I say that I cannot accept his submission. Principle of Order 8 Rule 5 of the CPC with 1976 amendment clearly says that where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint. The exception which is applicable against a person under a disability can only be applicable in certain peculiar circumstances like circumstances given under Order 32 etc. of the Code. Nevertheless when this petitioner/defendant neither filed written statement nor wanted to examine the witness it is obvious that decree is to be passed against it. This rule is also supported by further proviso of Order 9 Rule 13 of the CPC as per 1976 amendment. There it is explained that no Court shall set aside a decree when the defendant had sufficient time to appear and answer the plaintiffs claim. In the instant case there is no denial of the submission of the respondent that even after extension in excess of two years time no written statement has been filed.

Mr. Mallick further contended that the suit is bad in law. If the suit is bad in law, it is not open for this Court to take such ground as sufficient cause to recall or set aside such decree. Such concept is different from the present one.

Therefore, taking into totality of the case I am of the view that decree as passed by this Court on 13th July, 2000 can not be recalled and/or set aside and be restored in the file. Therefore the application stands dismissed. However, ho order is passed as to costs.

Xerox certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment. All parties are to act on a signed copy minutes of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above.