Kuldeep Singh vs Gaurav and Others

Rajiv Sharma, J—Notices were issued to the respondents by way of publication. There is no representation on their behalf. They are proceeded ex parte.

Present petition is instituted against Order dated 31.5.2014 rendered by learned Civil Judge (Junior Division), Indora in CMA No. 199/2011 in Civil Suit No. 119/2007.

"Key facts" necessary for the adjudication of the present petition are that the petitioner-plaintiff (hereinafter referred to as ''plaintiff'' for convenience sake) has instituted a suit for declaration in the Court of Civil Judge (Junior Division) Indora. It was assigned Civil Suit No. 119/2007. Civil Suit was fixed for the evidence of respondents-defendants (hereinafter referred to as ''defendants'' for convenience sake) on 14.6.2011. Plaintiff was suffering from loose motion and headache and was unable to come to the Court. His counsel was busy in Tehsil complex at Indora. In these circumstances, there was no representation on behalf of the plaintiff on 14.6.2011. Civil Suit was dismissed for default on 14.6.2011.

Plaintiff made an application under Order 9 Rule 9 CPC alongwith application under Section 5 of Limitation Act. Plaintiff has given circumstances in which neither he nor his counsel could be present before the Court on 14.6.2011. He came to know about Order dated 14.6.2011 on 29.6.2011. Non-appearance was bona fide and not intentional. Application was contested by respondents-defendants. According to the defendants, plaintiff willfully did not appear before the Court and his counsel was not busy in Tehsil complex Indora. Application was barred by limitation. Trial Court framed issues on 8.11.2012. Plaintiff has appeared as AW-1. He led his evidence by filing affidavit Ext. AW-1/A. Respondent Surinder Singh appeared as RW-1 and filed his evidence by way of affidavit Ext. RW-1/A. Civil Suit was dismissed for default on 14.6.2011 when it was listed for recording evidence of the defendants. Plaintiff was pursuing Civil Suit diligently and could not be present on 14.6.2011 due to ill health. His counsel was busy in Tehsil complex Indora. He came to know about order dated 14.6.2011 on 29.6.2011. Thereafter, he moved an application under Order 9 Rule 9 CPC alongwith application under Section 5 of Limitation Act. It is not one of the cases where there is inordinate delay in filing application under Order 9 Rule 9 CPC for restoration of suit. Cogent and convincing reasons have been given for non-appearance of the plaintiff and his counsel on 14.6.2011. It was not necessary for the plaintiff to produce on record medical evidence when he has filed affidavit stating therein that he was ill on 14.6.2011. No evidence in rebuttal has been filed to prove that the plaintiff was not ill. He has recovered from the disease after one and a half month and thereafter moved application for restoration of suit, which was dismissed for default on 14.6.2011.

Learned trial Court has come to a wrong conclusion that plaintiff has not approached the Court with clean hands. Non-appearance was bona fide and beyond his control. It is settled law that the Courts should be liberal while condoning delay if the same is of shorter duration and strict view is to be taken where there is inordinate delay. Trial Court has taken a hyper-technical view while dismissing application vide order dated 31.5.2014 instead of doing substantial justice between the parties. Moreover, Civil Suit was pending since 2007 and was listed for recording evidence of the defendants.

Learned Single Judge of Calcutta High Court in Dulal Chandra Ojha Vs. Banamali Guchait and Others, AIR 1989 Cal 91 , has held that the Courts should adopt a liberal approach while determining sufficient cause under Order 9 Rule 9 CPC. Learned Single Judge has held as under:

"4. The attention of this Court is drawn to recent decision of the Hon''ble Supreme Court reported in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, AIR 1987 SC 1353 : (1987) 13 ECC 27 : (1988) 19 ECR 565 : (1987) 28 ELT 185 : (1987) 167 ITR 471 : (1987) 1 JT 537 : (1987) 1 LLJ 500 : (1987) 1 SCALE 413 : (1987) 2 SCC 107 : (1987) 2 SCR 387 : (1987) 66 STC 228 : (1987) 2 UJ 29 . In considering the expression " sufficient cause" as envisaged in S. 5 of the Limitation Act the Hon''ble Supreme Court found that the legislature is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that the Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. In the instant case applying the said test this Court finds that a liberal approach ought to have been made to understand the sufficient cause as to the absence of the petitioner on the date of dismissal of the case for default. However, for ends of justice an opportunity may be given to the petitioner to contest the main case on merit."

Learned Single Judge of Delhi High Court in Bank of Baroda Vs. Sansar Chand Kapur and another, (1994) 3 AD 834 : AIR 1994 Delhi 359 : (1994) 56 DLT 555 : (1994) 30 DRJ 270 : (1994) RLR 433 , has explained expression "sufficient cause" as under:

"6. Thus, the principles of natural justice do not require that in every case oral hearing must be provided to a party by the executive authority. What is required is that the party should be given a chance to represent and that opportunity was given to the petitioner by the Central Government by inviting the counter comments of the petitioner to the case of the State. Learned Counsel for the petitioner relying upon the decision of the Orissa High Court in the case of Dr. Sarojini Pradhan Vs. Union of India (UOI) and Another, AIR 1988 Ori 96 : (1988) 65 CLT 350 has argued that the respondents were required to afford an opportunity of personal hearing to the petitioner. I am afraid this judgment does not help the petitioner. The Orissa High Court relying upon the decision of the Supreme Court in Maneka Gandhi''s case held that a person must be given opportunity to have his representation or say in regard to the matter which is going to affect him adversely. In the present case as already observed, the petitioner did have an opportunity to file his representation in the form of the counter comments. Besides the Central Government also afforded an opportunity of hearing to the petitioner which was not availed of on the ground that the lawyer of the petitioner was not available on that date. The mere fact that the Central Government did not accede to the request of the petitioner to the grant of an adjournment cannot vitiate the order of the Central Government. To grant or not to grant an adjournment was matter in the discretion of the Central Government, which cannot be interfered with.

Again in U.K. Mehra Vs. Union of India and others, AIR 1994 Delhi 25 : (1997) 88 CompCas 213 : (1993) 51 DLT 14 : (1993) 26 DRJ 495 : (1993) ILR Delhi 403 , this Court held that where a subsidiary is wholly owned by the principal company which has a pervasive control over it and the former acts as the hand and voice of the latter, the subsidiary in that event would be nothing but an instrumentality, rather a part of the principal company and the two would have to be treated as one concern, Noting the contemporary trend it was laid down that lifting of the corporate veil was permissible in public interest so that the real face of the persons forming the company could be seen in the interest of justice."

Paramount consideration of the Court is to protect the interests of all litigants especially when it can not be said that delay was occasioned deliberately or on account of culpable negligence or culpable malafides. Plaintiff would not have gained by resorting to delay rather he runs a serious risk.

Their Lordships of the Hon''ble Supreme Court in N. Balakrishnan Vs. M. Krishnamurthy, (1998) 6 AD 465 : AIR 1998 SC 3222 : (1998) 2 CTC 533 : (2008) 228 ELT 162 : (1998) 6 JT 242 : (1999) 121 PLR 462 : (1998) 5 SCALE 105 : (1998) 7 SCC 123 : (1998) 1 SCR 403 Supp : (1998) AIRSCW 3139 : (1998) 7 Supreme 209 , have held that the Courts are free to consider the cause shown for delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court. Their lordships have held as under:

"9. It is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes, delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain cases, the delay of very long range can be condoned as the explanation thereof is satisfactory. Once, the Court accepts the explanation as sufficient, is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter, when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the case shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammeled by the conclusion of the lower Court."

Their Lordships of the Hon''ble Supreme Court in Mahendra Rathore Vs. Omkar Singh and Others, (2001) ACJ 1436 : AIR 2002 SC 505 : (2002) 10 SCC 673 : (2002) AIRSCW 41 , have held that Court should adopt justice oriented approach while deciding application under Order 9 Rule 9 CPC. Their lordships have held as under:

"4. In the peculiar facts and circumstances of this case, in our opinion, the Motor Accident Claims Tribunal ought to have recalled the order of dismissal of claim petition dated 27-1-1998 and restored the petition to its original status, condoning the delay in moving the application for restoration. The application was supported by medical certificate showing the applicant having fallen ill on the date of hearing. The applicant''s own statement on oath remained uncontroverted. In such matters a justice oriented approach, and not a too technical or pedantic approach is expected to be adopted by Courts more so when the application sought to be restored for hearing was a claim case arising out of a motor accident. Refusal on the part of Tribunal to restore the claim petition, as also on the part of High Court to show indulgence to the appellant has occasioned failure of justice. The Tribunal could have put the parties to terms to meet the ends of justice but should not have refused to restore the claim petition. We, accordingly, allow these appeal sand set aside the impugned orders of the High Court as also of the Motor Accident Claims Tribunal dated 27-1-1998. The claim petition is restored to its original number and remanded to the Tribunal for its trial on merits. The proceedings hereafter shall commence from the stage at which the same were on 27th January, 1998 when the claim petition was dismissed in default of appearance. The Tribunal shall expeditiously dispose of the petition."

Consequently, the present petition is allowed. Order dated 31.5.2014 passed in CMA No. 199/2011 is set aside. Civil Suit bearing No. 119/2007 is restored to its original number. Trial Court is directed to proceed in the matter in accordance with law and decide the same within a period of six months from today.

Pending applications, if any, also stand disposed of. No costs.