Vipin Aggarwal vs Mohinder Singh

V.K. Shali, J.

C.M. No. 6775/2013 (for exemption)

Exemption allowed, subject to the deficiency being rectified. The application stands disposed of.

C.M. Nos. 6774/2013 & 6776/2013

These are the applications seeking condonation of delay in filing and re-filing the appeal.

I have heard the learned counsel for the appellant.

For the reasons stated in the applications, the same are allowed and delay in filing and re-filing the appeal is condoned as ''sufficient cause'' has been shown.

The applications stand disposed of.

F.A.O. No. 197 of 2013 & C.M. No. 6773/2013 (for stay)

This is an appeal filed by the appellant under Order XLIII Rule 1(d) read with Sections 104 and 151 CPC against the order dated 26.5.2012 passed in M. No. 62/2011 by virtue of which the learned Additional District Judge had dismissed the application of the appellant under Order IX Rule 13 read with Section 151 CPC for setting aside the ex parte decree dated 21.5.2011. Briefly stated the facts of the case are that the respondent/plaintiff filed a suit for specific performance, possession and permanent injunction against the defendant/appellant in respect of property No. 907, Second Floor, Gali Inderwali, Kucha Pati Ram, Bazar Sita Ram, Delhi. The plaintiff/respondent had setup the case that the defendant/appellant had agreed to sell the said property and for that purpose, they entered into an Agreement-cum-Bayana receipt dated 10.8.2008 and plaintiff/respondent also paid a sum of Rs. 2 lacs as earnest money and Rs. 5 lacs as part payment to the appellant. But the defendant/appellant with an ulterior motive, did not abide by the agreement. The defendant/appellant was served and he filed his written statement. However, thereafter, the defendant/appellant absented himself as a consequence of which he was proceeded ex parte on 20.9.2010. After recording of the ex parte evidence of the plaintiff/respondent, the suit was decreed vide judgment dated 21.5.2011. The defendant/appellant filed an application for setting aside the ex parte decree and took a plea that the absence of the appellant was on account of the reason that the counsel had asked the appellant not to appear in the court on account of the case being of a civil nature and he had assured that the matter would be attended to. So far as the counsel is concerned, it was stated that he had kept the case file on a wooden rack and one day all of a sudden, the wooden rack fell down and the files kept over it scattered which resulted in misplacement of the file in question. This is on account of the fact that after picking up the files which had fallen from the wooden rack; the same were placed in the chamber of one Mr. A.C. Tiwari, Advocate, Chamber No. B-107, Tis Hazari Courts, Delhi. Because of this incident, the file got mixed up and as the date of the case was not entered into the diary, therefore, the matter could not be attended by the counsel. It is further stated by the appellant that personally also he was not keeping good health and was suffering from various ailments due to tension and stressful life since February, 2011. He had also filed some documents pertaining to his treatment in Lok Nayak Hospital. On the basis of these facts, it was alleged that it was only on 1.9.2011 when the appellant visited the office of his counsel and enquired about the outcome of his case which led to the discovery of the fact that the file had been misplaced. Thereafter, the counsel searched the files kept in the chamber of Mr. A.C. Tiwari, Advocate from where, the same was located. Accordingly, an application under Order IX Rule 13 CPC for setting aside the ex parte decree along with an application seeking condonation of delay was filed.

The plaintiff/respondent filed reply to the said application contesting the claim of the defendant/appellant. It was stated that the application for setting aside ex parte decree was not only barred by time but even the explanation given by the defendant/appellant was totally uninspiring and unacceptable and did not constitute ''sufficient cause''. It was stated that this was actuated with a mala fide intention to delay the disposal of the case.

The learned trial court, after hearing the arguments, dismissed the application by observing that even if the plea of the file having been mixed up with other files of the counsel is accepted to be correct, even then the case should not have been dismissed for default for the reason that the case ought to have been entered into the diary of the counsel.

I have heard the learned counsel for the appellant and have gone through the impugned order. I find myself in agreement with the reasoning given by the trial court that the plea which has been taken by the appellant is not only totally uninspiring but is also a cooked up one. This is on account of the fact that even if the appellant is given the benefit of doubt so far as the mixing up of the file is concerned, that could not have been a ground for non-appearance of the appellant or his counsel in the trial court. This is because of the fact that when a date is given in a case invariably it is entered into the diary of the counsel. It is unlikely that the counsel without entering the date in his diary, would keep the file in his chamber and would not have known the date and even if it is assumed that the date was not entered in the diary, the case being of a recent origin should have at least arisen his curiosity or the curiosity of his clerk to find out as to what happened to the case of the appellant.

In addition to this, the plea which has been taken by the appellant that his counsel mixed up the file with other files of his chamber and then shifted the files in question to the chamber of Mr. A.C. Tiwari, Advocate, is not supported by the affidavit of the counsel or the affidavit of Mr. A.C. Tiwari, Advocate in whose chamber the file was traced. Therefore, in my opinion, this plea which has been taken by the appellant is a totally false plea and the trial court has rightly dismissed the same.

No doubt, the Supreme Court has in number of cases construed the concept of ''sufficient cause'' liberally but while construing the said term, it has repeatedly been observed that what is important to be seen is not the length of delay but the bona fides of the person [ N. Balakrishnan Vs. M. Krishnamurthy,

In the instant case, as the suit for specific performance was filed against the defendant/appellant, he should have been vigilant to defend his suit. He could not conveniently take the plea of being absent at the instance of his counsel and live completely at his mercy and not try to find out the outcome of the case for as long as 8-10 months. This conduct of the appellant also seems to be slightly unreasonable. In totality of circumstances, I feel that the explanation which has been given by the appellant is totally unconvincing and, therefore, the order of the trial court does not deserve to be interfered with. Accordingly, the appeal is dismissed.