Hyderabad Industries vs Ashok Kumar Gupta

A.K. Srivastava, J.—This is an application moved on behalf of Defendant No. 3, M/s. K.P. Solvex Limited, under Order 9 Rule 13 read with Section 151, Code of Civil Procedure, for setting aside the ex parte judgment and decree dated 13.10.1993 passed against it in suit No. 89/87.

The facts of the case are that the applicant, being Defendant No. 3, was served in the suit. It appeared through counsel Mr. D. N.S.D. Bhartiya and files its written statement. Defendants 1 and 2 were also served but they remained absent. Therefore the suit proceeded ex parte against all the Defendants. The suit was decreed with ex parte costs against all the Defendants vide order dated 13.10.93.

This application was moved on 24.11.95 saying that a written statement on behalf of the applicant was filed in the Court in which it was, inter alia, pleaded that the Defendants had paid in full for the value of the invoices for goods supplied by the plaintiff company and, therefore, nothing was due to the plaintiff from the Defendant and that there was no cause of action against and that suit was misconceived and not maintainable. It has further been contended in this application that Shri Bhartiya who was appointed as the Advocate by the applicant assured the applicant that there was no case against the applicant and that he will take care of all the matters and the applicant needs not to worry at all; that the applicant need fully relied upon the assurances and integrity of the said Advocate in the matter of prosecuting the defence for and on behalf of the answering Defendant; that on 11.11.95 the applicant Defendant was surprised to receive a notice from the Court of the District Judge, Jhansi, in the matter of execution of the decree passed in the aforesaid case; that on 11.11. 95 only the applicant Defendant came to know for the first time that a decree had been passed in the aforesaid suit and that Shri Bhartiya, Advocate appointed by the applicant Defendant had neglected and failed to appear in the suit and the suit proceeded ex parte against the applicant Defendant.

A reply to this application has been filed on behalf of the decree holder in which all the contentions raised by the applicant have been denied. It has, however, been contented that the applicant Defendant No. 3 cannot raise contentions relating to the merits of the decree in an application under Order 9 Rule 13, Code of Civil Procedure.

I have heard the learned Counsel for the parties. Order 9 Rule 13, Code of Civil Procedure, reads as follows:

In any case in which a decree is passed ex parte against a Defendant, he may apply to the 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 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 think fit, and shall appoint a day for proceeding with the suit.

On perusal of the aforesaid provision any Defendant can make a request under this rule for setting aside the ex parte decree if he satisfies the Court that: (i) the summons was not duly served; or (ii) that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.

In this application does not any say that he was not served with summons. The Only plea, therefore, which may be available to it is that it was prevented by any sufficient cause from appearing when the suit was called on for hearing.

Therefore, in view of the above legal position, the applicant cannot challenge the judgment and decree on merits under Order 9 Rule 13, CPC For that applicant ought to have taken recourse to the remedies which may be available to it under law.

Coming to the point whether the applicant was prevented by any sufficient cause from appearing when the suit was called on for hearing, the only plea of the applicant is that on receipt of summons he had come to Delhi, had appointed one Shri Bhartiya as his Advocate who had assured it that there was absolutely no case against it and that he will take care of all the matter and the applicant needed not to worry at all. It has further been pleaded that the applicant fully relied upon the assurances and integrity of the said Advocate and that the appointed Advocate Shri Bhartiya had neglected and had failed to appear in the Court when the suit came up for hearing which resulted in the aforesaid ex parte decree. The applicant also says that Shri Bhartiya, appointed Advocate, did not care to inform the applicant Defendant about the proceedings in the aforesaid suit.

On the basis of the contents of this application itself it is clear that the applicant after appointing Shri Bhartiya as his Advocate absolutely slept over the matter and took it for granted that the suit could never be decreed. There is nothing on record to show that the applicant after appointing the Advocate and after filing the written statement ever came to Delhi or ever enquired from his Advocate about the proceedings in the aforesaid suit. The written statement in the suit filed on 25.3.87. The suit was decreed ex parte on 13.10:93, almost more than six and half years after filling of the written statement So far as the Court is concerned it will proceed ex parte if the Defendant after service docs not appear or after appearance absents. The Court has no other option. It is a different matter whether the suit after being proceeded ex parte is decreed or dismissed. But it is not the liability of the Court to inform every time the parties about each and every date fixed in the suit. It is for the parties themselves to appear on the different dates fixed as be diligent enough to look after their own interests and to take care. If the applicant relied upon his Advocate it was his own choice and this cannot be a ground for setting aside ex parte decree. In my opinion under the aforesaid facts and circumstances it cannot be held that the applicant was prevented by any sufficient cause for appearing when the suit was called for hearing from the order sheet it transpires that the last appearance of Shri Bhartiya, Advocate for Defendant No. 3, was on 24.9.87. Thereafter on 30 dates this suit was listed for hearing and none appeared for Defendant. So it is clear that for six years the applicant neither made any enquiries in the Court about the progress of the suit nor made any enquiry from its Advocate, about the progress of the suit. There is no averment in the application that after 24.9.87 any one for the applicant ever came to its Advocate to find out whether the suit was still proceeding or had been dismissed.

From such a conduct on the part of the applicant it cannot be said that it acted with diligence. Therefore, I do not see that the applicant has any case for getting the ex parte decree against it being set aside.

In the result the application is dismissed with costs. The interim orders passed in IA 12064/95 on 13.8.96 are hereby vacated.