SHRI RAMESH CHANDER GOEL Vs SHRI DAYA KISHAN GOEL -Judgment by Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 12th January, 2023
Pronounced on: 27th January, 2023
+ CS(OS) 1240/2008 & I.A. 552/2023 & I.A. 553/2023
SHRI RAMESH CHANDER GOEL ….. Plaintiff
Through: Mr. P. D. Gupta, Sr. Advocate with Mr. Abhishek Gupta, Advocate
versus
SHRI DAYA KISHAN GOEL ….. Defendant
Through: Ms. Anusuya Salwan, Mr. Bankim Garg, Mr. Shakib Khan and Mr. Rachit Wadhwa, Advocates
CORAM:
HON�BLE MR. JUSTICE CHANDRA DHARI SINGH
J U D G M E N T
CHANDRA DHARI SINGH, J.
I.A. 20920/2022 (Under Order IX Rule 13)
1. The instant application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter as �CPC�) has been filed on behalf of the applicant seeking setting aside ex-parte decree dated 11th November, 2022 passed by the predecessor of this Court in CS(OS) 1239/2008 and CS(OS) 1240/2008.
2. For the sake of convenience, the nomenclature of the parties will, hereinafter, be used as �applicant� for defendant and �non-applicant� for plaintiff.
3. The plaintiff/non-applicant filed the suit bearing no. CS(OS) 1239/2008 and CS(OS) 1240/2008 seeking recovery of Rs. 3,15,57,680/- (Rupees Three Crores Fifteen Lakhs Fifty Seven Thousand Six Hundred and Eighty Only) and Rs. 1,54,43,120/- (Rupees One Crores Fifty Four Lakhs Forty Three Thousand One Twenty Only) along with pendent lite and future interest.
4. The applicant had filed written statements in both the suits in response to the plaint. Since the aforesaid recovery suits were based on alleged identical transactions, the said suits were consolidated vide order dated 1st May, 2019 passed in the aforesaid suits.
5. Ms. Anusuya Salwan, learned counsel appearing on behalf of the applicant submitted that the applicant is aggrieved of the order dated 8th August, 2022 passed by learned Joint Registrar, order dated 26th September, 2022 and ex-parte decree dated 11th November, 2022 passed by the predecessor of this Court.
6. It is submitted that the applicant had engaged the services of Mr. Gaurav Sharma, Advocate for representing him in the present case as the applicant is a resident of Mumbai, Maharashtra.
7. It is submitted that on 31st January, 2018, the applicant had filed a consolidated evidence by way of affidavit on behalf of the applicant in affirmative of CS(OS) No. 1240/2008 and CS(OS) No. 1239/2008.
8. It is submitted that the applicant was informed by the erstwhile counsel engaged by the applicant that as per notification No. 418/RG/DHC/2020 dated 27th August, 2020 and No. 465/RG/DHC/2020 dated 30th September, 2020, the evidence was to be recorded only in ex-parte and uncontested matters and since the suit was a contested matter, the applicant was not required to appear till such notification was continued.
9. Ms. Salwan, learned counsel for the applicant also referred to the order dated 5th October, 2020 passed in CS(OS) No. 1239/2008 and submitted that the aforesaid observation is also recorded in the said order.
10. It is vehemently argued by learned counsel for the applicant that the applicant was diligently pursuing the matter and was awaiting instructions from the counsel in order to attend court proceedings for recording of evidence. However, no instructions/updates were given by the counsel of the applicant and therefore, the applicant could not appear before the Court.
11. Learned counsel for the applicant submitted that applicant as well as his wife suffered from Covid-19 during the month of March-April 2021. It is further submitted that the applicant is still suffering from Post Covid Symptoms. The applicant is also suffering from severe depression and severe back ache.
12. It is submitted that the applicant has been informed about the ex-parte judgment dated 11th November, 2022 by his relatives, and only then the applicant came to know that he has been proceeded ex-parte on the ground of non-appearance in earlier proceedings.
13. Learned counsel for the applicant referred several order sheets of this Court as well as Court of learned Joint Registrar. It is submitted that on 16th April, 2019, the applicant in CS(OS) 1240/2008 and DW-1 in CS(OS) 1239/2008 was present and recorded his examination-in-chief. It is submitted that the matter was next listed on 2nd August, 2019 for cross-examination of DW-1.
14. On 2nd August, 2019, learned counsel for the applicant was present and on the joint request, the case was fixed for 29th November, 2019. On 29th November, 2019, DW-1 could not appear as he was advised by his erstwhile counsel that since no clarifications with respect to the disallowed documents were made by the plaintiff�s counsel upto date, no cross examination would take place. It is submitted that in the aforesaid order sheets, it is recorded that since the Stenographer was on leave and no substitute stenographer was available, therefore, the matter was adjourned. The matter was taken up on 18th August, 2020 and learned Joint Registrar vide order dated 18th August, 2020 recorded that neither the scanned nor physical judicial file was sent by the Registry and case was put up for further proceedings on 5th October, 2020.
15. Learned counsel for the applicant vehemently submitted that as per the foregoing paragraphs, on 5th October, 2020, 2nd February, 2021, 1st September, 2021 and 12th November, 2021, no effective hearing took place.
16. It is submitted that on 8th August, 2022, learned Registrar was misled by the plaintiff to believe that nobody was appearing on behalf of the applicant from 16th April, 2019 despite the fact that the orders dated 2nd August, 2019, 2nd February, 2021 and 1st September, 2021 clearly record the appearance of applicant�s counsel. The learned Registrar failed to consider contents of the order dated 2nd August, 2019, wherein it was recorded that the applicant could not appear for recording of evidence on 2nd August, 2019 due to his ill-health. It is also submitted that no court notice was issued to the applicant before closing their right to lead evidence.
17. It is submitted that on 26th September, 2022, the applicant was proceeded ex-parte on the ground of non-appearance by the applicant without issuance of any court notice to the applicant. The ex-parte arguments were heard on the same day and the judgment was reserved.
18. Learned counsel appearing on behalf of the applicant submitted that vide judgment dated 11th November, 2022, the predecessor of this Court held that the plaintiff is entitled to recovery of Rs. 1,00,28,000/-(Rupees One Crore Twenty Eight Thousand Only) in CS(OS) 1239/2008 and to Rs. 2,04,92,000/- (Rupees Two Crores Four Lakhs Ninety Two Thousand Only) in CS(OS) 1240/2008 along with pendete lite and future interest @ 6 % per annum from the date of institution of the suit till the date of payment in both the suits.
19. Learned counsel for the applicant submitted that no negligence or inaction is imputable to applicant in the facts of the case and the applicant has shown sufficient cause for not appearing before the Court. In support of her arguments, she has relied upon the judgment of Hon�ble Supreme Court in the case of G. P. Srivastava v. R. K. Raizada and Others, (2000) 3 SCC 54.
20. It is submitted that the applicant had approached the Court within the stipulated time and the absence of the applicant was not intentional or mala fide. In support of her arguments, she has also relied upon the judgment of Hon�ble Supreme Court in the case of A. Murugesan Vs. Jamuna Rani, 2019 SCC OnLine SC 200. Therefore, it is vehemently prayed that in view of the above facts and circumstances and in the light of principle as laid down by Apex Court, the application filed under Order IX Rule 9 may be allowed.
21. Per contra, Mr. P. D. Gupta, learned senior counsel appearing on behalf of the plaintiff/non-applicant submitted that the applicant has not given any explanation/cause much less sufficient cause for his own non-appearance in the present suit and rather, it is respectfully submitted that the continued absence of the applicant was wilful and deliberate. Learned senior counsel for the plaintiff submitted that the instant suit was filed in the year 2008 and due to non-cooperation of the applicant it has remained till 2022.
22. Learned senior counsel for the plaintiff submitted that the applicant has not even complied with order dated 29th November, 2019 passed in CS(OS) No. 1239/2008, whereby opportunity was granted to the applicant to proceed with his evidence subject to cost of Rs.5,000/-, the receipt thereof was directed to be filed before the next date of hearing of 26th March, 2020. Further, the applicant has not also complied with order dated 2nd August, 2019 passed in CS(OS) No. 1239/2008, whereby his request for adjournment and opportunity for examination-in-chief and his cross-examination was granted subject to furnishing of his medical certificate before the next date of hearing of 29th November, 2019.
23. Learned senior counsel for the plaintiff submitted that the above stated facts show the conduct and the hostile attitude of the applicant, and also that the applicant has failed to establish his bona fide for filing the present application for setting aside the ex-parte order passed by this Court.
24. It is submitted that the applicant has failed to establish any bona fide ground for allowing the instant application. It is further submitted that all the orders passed by the Court as well as the status of all the cases are being updated almost on daily basis on the website of this Hon�ble Court and it is completely unbelievable that the father of applicant, who is an expert litigant and applicant himself were unaware of the case status as well as the orders passed and uploaded from time to time.
25. It is submitted that there is no force in the arguments advanced on behalf of learned counsel for the applicant that since the counsel had not informed the applicant, he could not appear in the suit proceedings.
26. Mr. Gupta, learned senior counsel for the plaintiff submitted that the present suit for recovery of money was filed by the by the plaintiff in the year 2008, issues therein were framed on 1st May, 2009 and the plaintiff’s evidence was concluded on 26th November, 2014. The plaintiff was cross-examined at great length by the applicant on numerous dates of hearing and he tried to harass the plaintiff to the fullest possible extent. The matter remained pending for applicant’s evidence since 7th April, 2015 and the learned Joint Registrar vide order dated 8th August, 2022 i.e. after expiry of more than 7 years closed the right of the applicant to lead evidence after clearly holding that the applicant had already availed sufficient number of opportunities.
27. Learned senior counsel for the plaintiff submitted that the applicant by way of the instant application has also sought the relief of setting aside order dated 8th August, 2022 passed by the learned Joint Registrar, whereby the applicant’s right to lead evidence was closed. In this regard, it is submitted that the said order cannot be sought to be set aside under the provisions of Order IX Rule 13 of the CPC as the same can only be challenged by way of a chamber appeal. It is further submitted that now the challenge to the said order dated 8th August, 2022 is barred by limitation.
28. It is submitted that the applicant right from the beginning has been delaying the disposal of the present suit at every stage and the same is apparent from the foregoing discussions/submissions.
29. Learned senior counsel for the plaintiff submitted that there is no force in the argument of learned counsel for the applicant that no effective hearings could take place on 5th October, 2020, 2nd February, 2021, 1st September, 2021 and 12th November, 2021. It is submitted that a bare perusal of the aforesaid orders passed on the aforesaid dates would reveal that on the said dates of hearing the continued absence and non-compliance of previous orders on the part of the applicant was repeatedly mentioned. Despite the aforesaid facts, the learned Joint Registrar granted further opportunities for applicant’s evidence. It is submitted that the conduct of the applicant was to avoid appearance and deliberate non-compliance of the orders.
30. It is submitted that the balance of convenience and equity lies in favour of the plaintiff and against the applicant on the merit of the case. The applicant has miserably failed to make out any case for allowing the instant application. The instant application is devoid of any merit and is liable to be dismissed.
31. Heard learned counsel for the parties at length and perused the record.
32. This Court has perused the documents as well as the reply filed by the plaintiff to the application. The main issue involved in the present application is �whether the applicant has made out sufficient cause for setting aside ex-parte decree dated 11th November, 2022 under Order IX Rule 13 of the Code of Civil Procedure, 1908.�
33. In view of the discussion and foregoing paragraphs, there is no dispute that the applicant was duly served. Thereafter, he appeared through his advocate and filed the written statement. The Court has framed the issues and thereafter the plaintiff filed his affidavit of evidence and examined his witnesses. The matter was adjourned from time to time, the applicant as well as his advocate failed to attend the court proceedings thereafter. The reasons given by the applicant in the application about his health as well as non-information from the erstwhile counsel about the date fixed by the court are very difficult to accept. This Court finds force in the arguments of learned senior counsel appearing on behalf of non-applicant. In the day and age of virtually operating Courts and independent e-filing, every proceeding is being uploaded by the Registry of the Court on its website and the applicant, being an educated person, could get the information from the website.
34. The other reasons given by the applicant that his wife and father were not keeping well and he also had severe back ache, therefore, could not attend the court proceedings on several dates which were fixed by the Joint Registrar as well as by the Court, are also not sufficiently established to show that the ex-parte decree deserves to be set aside. The ailments or diseases as mentioned in the application by the applicant, do not necessitate the patient to take bed rest for a long time. During the arguments, learned counsel for applicant has failed to produce any medical certificate to reasonably establish that due to those ailments, the applicant was not able to attend the court proceedings.
35. The order dated 8th August, 2022 passed by the learned Joint Registrar cannot be challenged in the instant proceedings of the Order IX Rule 13 as the same not maintainable as per the Delhi High Court (Original Side) Rules, 2018. The said order can only be challenged by way of a Chamber Appeal.
36. Bare reading of the order and the decree passed by the predecessor of this Court as well as other documents, which are referred to by the applicant during the arguments, show that the predecessor of this Court has considered entire material on record and thereafter, passed the ex-parte decree on 11th November, 2022.
37. The applicant has not been able to show any sufficient cause for setting aside the ex-parte decree passed against him.
38. In view of the above facts and circumstances, this Court does not find any substance in the instant application.
39. Accordingly, the instant application, being bereft of any merit, is dismissed.
40. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
JANUARY 27, 2023
gs/ms
NEUTRAL CITATION NO. 2023/DHC/000599
I.A. 20920/2022 in CS(OS) 1240/2008 Page 10 of 10