Harpreet Singh Kohli vs Neelu Estate And Movers Pvt Ltd

THE opposite party Nos. 1, 2, 4 and 5 were ordered to be proceeded ex parte order vide order dated 4.9.2006. The said OPs have filed application on 13.8.2009 for setting aside of the said ex parte order along with the application for condonation of delay in which it is stated that there is no delay from the date of knowledge of the order dated 4.9.2006. However, there is delay of 954 days in filing the application from the date of the said order. The reasons given for setting aside of the ex parte order and delay in filing the application are; that the OPs had engaged the service of Advocates Shri Navdeep Singh, but there was no positive response from him; that the OPs had appointed Advocates to pursue their case and on account of mistake of the Counsel in not pursuing the matters, the OPs should be penalized and the ex parte order be set aside.

THE complainant had filed reply opposing the application and it is stated that even prior to 4.9.2006, no one had appeared on many earlier dates on behalf of the OPs; that the OPs had changed a number of lawyers and even one Advocate had withdrawn for want of instructions; that the case put forward by the OPs cannot be believed and since the OPs have not been diligent in prosecuting the matter, the application be dismissed.

HEARD Counsel for the parties. Learned Counsel for the OPs pointed out that action has been initiated against Advocate, Navdeep Singh by filing an application against him with the Bar Council of Delhi; that once the complaint was dismissed in default and had been restored; that the OPs should not be made to suffer on account of non-appearance of the Advocate and that the application be allowed. On the other hand, learned Counsel for the complainant submitted that notice be issued to Advocate Shri Navdeep Singh on the allegations made against him by the OPs; that no sufficient cause has been shown for setting aside the order nor any justification has been given for condoning delay. Alternatively it was argued that the OPs be burdened with heavy costs if the application is allowed.

THE OPs have filed written statement of defence. The affidavit evidence has been filed by the complainant and the matter was fixed for filing affidavit evidence by the OPs. The same was to be filed within 4 weeks from 18.1.2006 and the matter was fixed for final disposal on 4.9.2006. On that date, no one appeared on behalf of the OPs and the matter was ordered to be proceeded with ex parte. The application for setting aside of the ex parte order and application for condoning the delay was filed on 13.8.2009 that is to say after about 3 years of the ex parte order. It appears that the OPs have not been quite diligent in making inquiries with their Counsel about the progress of the matter. The record shows that no appearance was put on behalf of the OPs from 9.9.2005. It is no doubt true that the OPs had engaged the service of counsel, yet, the OPs were required to make inquiries with the Counsel from time-to-time. Though the OP has not given sufficient justification as such, yet, in the interest of justice I am inclined to condone delay as also set aside the ex parte order dated 4.9.2006 in order to give opportunity to the OPs to file affidavit evidence within 6 weeks with the Registry with copy to the complainant from the date of receipt of the order subject to deposit of cost in favour of the complainant by way of demand draft for Rs. 25,000

IN view of the above, the applications are allowed and the ex parte order dated 4.9.2006 is set aside subject to deposit of draft, as aforesaid. The Registry shall receive the affidavit evidence of the OPs only when the demand draft of cost of Rs. 25,000 in favour of the complaint is filed. Applications allowed.