M/s. New Model Industries, Pvt., Ltd vs M/s. Talwar Mills Store

J.V. Gupta, J.—M/s Talwar Mills Stores, plaintiff-respondent, filed the suit for the recovery of Rs. 14,500/- against the defendant petitioner, M/s New Model Industries. In that suit, the plaintiff was directed to produce his evidence on April 3, 1979. Surprisingly enough, no evidence was produced by the plaintiff and the case was adjourned from time to time. Ultimately, on March 26. 1980, the case was adjourned to May 23, 1980. On that day, no one appeared on behalf of the defendant, and, therefore, the Court ordered ex-parte proceedings against it. That day the case was adjourned to May 29, 1980, for the ex-parte evidence of the plaintiff. On the basis of the ex parte evidence, the suit was decreed ex-parte on June 3, 1980. Application to set aside the ex parte decree was filed on June 6, 1980, i.e., within three or four days of the passing of the ex parte decree under Order IX rule 13, Code of Civil Procedure, (herein after called the Code). The said application was contested on behalf of the plaintiff-decree-holder. In the said application, it was pleaded by the judgment-debtor that on May 23, 1980, the defendant was out of station and that its counsel had also gone to Nawanshahr. When the case was called, nobody appeared. Therefore, the ex parte proceedings were taken. Ultimately, on June 3, 1980, ex parte decree was passed. According to the allegations made in the application, the absence on the part of the defendant or its counsel on May 23, 1980, was neither intentional nor neglectful. The plaintiff contested the application. The trial Court dismissed the same. In appeal, the appellate Court affirmed the said order of the trial Court. Dissatisfied with the same, the defendant has come up in revision to this Court. Thus, the only controversy between the parties to be determined in this revision petition is : whether there was sufficient cause for setting aside the ex parte decree or not ?

The defendant himself came to the witness-box and also produced his counsel, Shri H. K. S. Bhatia. According to the defendant, on May 22, 1980, he told his counsel that he would not be able to come to the Court on May 23, 1980, as he was going out of station and, therefore, the learned counsel may please attend the case. Thus, he did not attend the Court that day. It was on June 6, 1980 when he contacted his counsel and tried to find out the proceedings in the suit that he was told that the ex parte decree had been passed against him on June 3, 1980. Immediately the application for setting aside the ex parte decree was filed. Shri H. K. S. Bhatia. Advocate, has supported the defendant in this behalf. According to him, on that day, he had gone to Nawanshahr and, therefore, he could not attend the case though he had other cases also which were fixed for that day in the trial Court. Both the Courts below have found that there was no sufficient cause for setting aside the ex parte decree. According to the appellate Court, it stood established that the defendant and his counsel were contumaciously negligent in causing their appearance in the case on May 23, 1980. They never bothered to know about the next date of hearing fixed in the case. Consequently, the appeal against the order of the trial Court was dismissed and the order of the trial Court dismissing the application under Order IX rule 13 of the Code was maintained.

After hearing the learned counsel for the parties, I am of the considered opinion that it is a fit case where the ex parte decree should have been set aside on payment of costs, and on the conditions that the judgment-debtor should deposit the whole decretal amount with interest in trial Court for payment to the decree-holder. It is evident that it was the negligence on the part of the counsel for the defendant Shri H. K. S. Bhatia, for which the defendant has been made to suffer. However, though it may not be a ground by itself to set aside ex parte decree, yet from the proceedings in the trial Court earlier, it is evident that the case was adjourned from time to time with effect from April 3, 1979 to May 23, 1980 for the evidence of the plaintiff alone and no witness was produced on those nine dates. Since, on May 23, 1980 the case was adjourned to May 29, 1980, for the ex parte evidence of the plaintiff whereas earlier it was ordinarily adjourned for a month or so, it appears that in these circumstances, the defendant was under the bona fide belief that this time also, the case might have been adjourned at least for a month or so. In any case, when the plaintiff did not produce evidence on so many dates earlier nor on 23rd May, 1980, and the application for setting aside the ex parte decree was immediately filed within three or four days of the passing of the ex parte decree, then it was a fit case where the ex parte decree should have been set aside in the first instance on payment of costs. All this exercise of recording the evidence in this behalf by the trial Court was not warranted from the facts of the present case.

Consequently, this revision petition succeeds and is allowed. The orders of the Courts below are set aside and the application for setting aside the ex parte decree is allowed on payment of costs of Rs. 1,000/- to be borne by Shri H. K. S. Bhatia, Advocate, who was counsel for the defendant and on account of whose neglectful conduct the petitioner had to suffer protracted legal proceedings so long and further on the condition that the judgment-debtor deposits the whole decretal amount with interest in the trial Court within a month from today; failing which the revision petition will stand dismissed with costs. If the said amount is deposited as directed, the plaintiff will be entitled to withdraw the same on furnishing security for refund in case the suit is dismissed. In that case, the defendant will be entitled to recover the amount with interest. It is also further made clear that the parties will lead their evidence at their own responsibility for which one opportunity each will be given by the trial Court. However, dasti summons may be given, if so desired, as contemplated under Order XVI rule 7-A of the Code. The parties have been directed to appear in the trial Court on May 27, 1985. The record of the case be sent back forth-with.