Mas Aviation Pvt. Ltd. and Another vs Sarla Tulshan

Pradeep Nandrajog, J.—The petitioners are aggrieved by an order which has declined delay to be condoned in preferring an application

under Order 9 Rule 13, alternatively to be read as an application under Order 47 of the Code of Civil Procedure.

Relevant facts are that the respondent has filed a suit for ejectment and mesne profits against the petitioners. Summons in the suit were duly

served upon the petitioners and second petitioner who is the Director of the first petitioner personally appeared before the learned Trial Judge on

5.10.2005 and sought time for filing a written statement. Time as prayed was granted and matter was listed for 10.11.2005. On said date a

counsel appeared for the petitioners. He filed a Vakalatnama. He prayed for further time to file a written statement. Time was granted. It was

directed that advance copy of the written statement would be supplied to counsel for the plaintiff by 16.12.2005 and in court the same would be

filed on 12.1.2006, the next date notified for hearing. On said date none appeared for the petitioners. Matter was listed for plaintiff to lead ex-

parte evidence for 24.2.2006. Ex-parte proceedings were conducted against the petitioners. Finally, an ex-parte decree was passed on

20.9.2006.

A composite application under Order 9 Rule 13, Order 47 of the CPC cum Section 5 of the Limitation Act was filed by the petitioners. It was

prayed that delay in preferring the application be condoned. On merits it was pointed out that reason, being the sufficient cause, for non-

appearance on 12.1.2006 and on subsequent dates was that petitioner No. 2 who attended the hearing on 10.11.2005 casually met one Amit

Kukshel, Advocate in Tis Hazari Courts. The lawyer gave him his visiting card. Fee was not paid to the lawyer. The lawyer was requested to take

an adjournment for filing the written statement. That unfortunately, petitioner No. 2 lost the visiting card of the lawyer and since the lawyer had a

sitting place some where within the precincts of Tis Hazari Courts Complex second petitioner had no means to locate the lawyer. As regards the

lawyer concerned it was stated that since no fee was paid to him, probably for said reason, the lawyer did not appear in court after obtaining time

to file the written statement on 10.11.2005. It was further stated that on 29.11.2006 petitioner No. 2 came into contact with one Ramesh Kumar

an Advocate in Tis Hazari. He appraised the lawyer of an institution of a suit against the petitioners. With great difficulty the lawyer concerned,

after making personal efforts, learnt about the ex-parte judgment and decree dated 20.9.2006. It is stated that thereafter the application in question

was drafted and filed.

I note that the affidavit in support of the application has been deposed to before the learned Oath Commissioner on 2.12.2006.

The learned Trial Judge found that the cause shown did not constitute a sufficient cause entitling the petitioners to have the delay condoned in

preferring composite application under Order 9 Rule 13 read with Order 47 of the Code of Civil Procedure.

I may note the averments made by the petitioners in para 11 of the their application. The same reads as under:

On 29.11.2006 the defendant No. 2 came in contact with Sh. Ramesh Kumar, Advocate through a common friend apprised him all the above

facts. Except the name of the case and the name of this Hon''ble Court, the defendant No. 2 did not have any other clue available with him. The

said Advocate made efforts and came to know about the passing of the said ex-parte judgment and decree dated 20.09.2006 and has accordingly

apprised the defendant No. 2 about the same. The time thereafter has been taken by the said Advocate in preparing this application.

To say the least, the averments are lacking in material particulars. A sweeping and all embracing statement has been made that Ramesh Kumar

made efforts and learnt about the passing of the ex-parte judgment and decree dated 20.9.2006. What those efforts were? None have been

stated. In this connection, it is relevant to note that case projected by the petitioners is that second petitioner had handed over all papers to the

earlier counsel and for said reason was handicapped in trying to even locate the suit which was filed against the petitioners by the respondent.

Under the circumstances only method available with Ramesh Kumar to locate the ex-parte judgment and decree would be to carry out a search of

virtually all suits filed in Tis Hazari about 3 months prior to 5.10.2005 for the reason only information available with the petitioners was (being

served with summons in a suit to cause appearance to be entered on 5.10.2005), the suit in question had to be a suit filed prior to 5.10.2005.

As noted here-in-above, affidavit in support of the application has been deposed to on 2.12.2006. It is difficult to believe that within a short

span of less than 3 days the counsel managed to locate the suit file.

Be that as it may, question which arises for consideration is whether the petitioners were diligent and were bona fide prosecuting their defence.

If the version of the petitioners is to be accepted, petitioners have to explain as to why they did not try and contact the plaintiff of the suit.

Surely, second petitioner could not be oblivious of the fact that the plaintiff was none else other than the landlady who claimed to have let out the

suit premises to the petitioners. She could have been contacted and request made that particulars about the suit should be made available to the

petitioners.

For the facts noted here-in-above I find that no sufficient cause exists entitling petitioners to have the delay condoned. The view taken by the

learned Trial Judge is legal and valid.

The petition is dismissed.