Texmode vs Sana Overseas Inc.

Shiv Narayan Dhingra, J.—By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 8.5.2007 whereby the application under Order 9 Rule 7 CPC and another application under Order 9 Rule 9 filed by the petitioner were dismissed.

The relevant facts necessary for disposal of this petition are that respondent/plaintiff had filed a suit for recovery of Rs. 2,51,000/- against the defendant/petitioner, in that suit the present petitioner had also filed a counter claim. The suit of the respondent and counter claim of the petitioner was fixed before the Trial Court on 21.3.2005 for admission/denial of the documents. On that day after admission/denial, the matter was adjourned to 25.4.2005 for framing of issues. On 25.4.2005 none appeared for the defendant despite the Court waiting for the defendant after passing over of the matter and the defendant was proceeded ex-parte in the suit and the counter claim of the defendant was dismissed. Defendant filed two applications, one under Order 9 Rule 7 CPC for setting aside ex parte order and another under Order 9 Rule 9 CPC for restoration of the counter claim. In both the applications, the petitioner/defendant took the stand that on 25.4.2005 counsel for the petitioner could not appear and manager of the defendant Mr. Rajesh came to the Court and appeared when the case was called. However, the plaintiff was not present in the morning therefore, the case was kept pending but inadvertently the Court did not mark the attendance of the representative of the defendant. Thereafter at 12.40 pm, when the representative of the defendant came to the Court and enquired about the matter, it was found that the case was still pending. The representative of the defendant then came after lunch to make enquiry from the reader but the reader was busy with other litigants and the representative was informed by the reader the next date of hearing. There was crowd in the Court, so the representative of the defendant noted down the next date as 3.8.2005 and accordingly informed his Counsel this next date. On 3.8.2005, when the representative of the defendant came to the Court, the case was not found in the cause list and on enquiry, he learnt that he had already been proceeded ex parte on 25.4.2005. On inspection, it was revealed that none appeared for the defendant before the Court on 25.4.2005 and the defendant was proceeded ex parte and counter claim of the defendant was dismissed in default hence the application.

The Trial Court disbelieved the stand taken by the defendant/petitioner and also found that even earlier a similar stand was taken by the defendant/petitioner when earlier also none had appeared for the defendant and the case was proceeded ex parte against the defendant/petitioner and counter claim was dismissed. The Trial Court observed that the application has been filed with a false story and defendant was in the habit of absenting himself and getting proceeded ex parte and then getting the same order set aside so as to delay the proceedings. The Trial Court found that it was highly improbable that similar circumstances would arise twice with the same party and the excuse given by the defendant was a ploy, to have the application allowed.

I have perused the application filed by the petitioner under Order 9 Rule 7 CPC as well as previous application filed by the petitioner dated 31.8.2004 under Order 9 Rule 7 CPC. In the previous application also, the petitioner had taken the stand that Counsel for the defendant could not appear before the Court due to unavoidable circumstances and employee of the petitioner company along with another person named Rajnish appeared to seek time for filing WS and at that time plaintiff did not appear and the Court kept the case pending by saying to come later on. Thereafter, the clerk of the Counsel came to the Court and enquired about the next date and he by mistake noted down as 20.8.2004 while the case was actually adjourned to 12.7.2004

It is true that while considering the application under Order 9 Rule 7 CPC, the Court must consider, the sufficiency of the reasons given for absence of the party on that day and should not be influenced by the earlier conduct. But in order to see bona fide of the reasons given, the Court has to take into account the conduct of the party in prosecuting the case. In this case, the defendant seems to be bent upon delaying the trial, almost ten dates were taken by the defendant for filing WS, in between the defendant was proceeded ex parte. Every time, when a case is proceeded ex parte, an application for setting aside ex parte order is made after three or four months. The application is taken, its reply and rejoinder are filed, by the time the application is decided, the case is pushed back and delayed for a period of one year. If an application is allowed with costs of Rs. 2,000/- or Rs. 3,000/- for setting aside an order, the costs in fact become a premium in delaying the case. If one can get the case delayed for one year by just paying Rs. 3000/- what more is required by a party.

I consider that the Courts have to be serious about this kind of applications which are made by the unscrupulous parties just to see that the case does not proceed. Once a party is proceeded ex parte and the ex parte order is set aside thereafter, the party has to be very careful and vigilant. Every time an advocate cannot take a plea that he could not attend the Court due to unavoidable reasons and some clerk or employee came and noted a wrong date or attendance was not marked by the Court. In this case the stand taken by the defendant is that after launch when he came to the reader, reader gave him some date, in the crowd he could not note the correct date and noted the wrong date. It is to be noted that the rush hour in the Court are morning hours and after lunch hours are non-rush hours when only few cases are left to be dealt with. It is not possible that the reader would give wrong information or wrong date or it can noted wrongly by a party. It is defendant''s own case that the same reader on next date in the morning hours, when the case was not found in the cause list, gave correct information that the defendant was proceeded ex parte on 25.4.2005 itself. If in the morning hours, the reader could, after checking the record, give correct information to the petitioner, why would the reader would give wrong information to the petitioner in the afternoon hours. It only seems that the entire story was cooked up by the petitioner and his story was prepared on the lines of previous story hoping that like earlier application this time also his application would be allowed. The same ploy does not work every time.

I consider that the Trial Court rightly disbelieved the reason given by the petitioner. I find no force in the petition. The petition is hereby dismissed.