Asok Kumar Ganguly, J.
1. This appeal, at the instance of West Bengal State Electricity Board (hereinafter referred as the 'Board') was filed impugning a judgment and order dated 25th February, 2003 passed by a learned Judge of this Court in GA. No. 2427 of 2002 arising out of Suit No. 322 of 1993.
2. By the said order under appeal, the learned Judge rejected the application which contained several prayers.
3. In the said application there is a prayer for condonation of delay in applying foe setting aside the ex parte decree dated 15th January, 2001 passed in Suit No. 322 of 1993. There is also a prayer for setting aside that decree. Prayer was also made for setting aside the order dated 20th January, 2002 passed in the execution application being G.A. No. 6 of 2002 and the dismissal of the execution proceeding.
4. The learned Single Judge held, and in our view rightly, that if the prayer for setting aside the ex parte decree is allowed, the rest of the prayers are consequential and therefore, the learned Single Judge considered both the prayers for condoning the delay in applying for setting aside the ex parte decree and also the prayer for setting aside the decree. Ultimately by a reasoned judgment and order, the learned Judge dismissed both the prayers in the said application as the learned Judge was of the view that sufficient cause was not made out in respect of either of the two prayers.
5. In the meantime the execution proceedings, arising out of the said ex parte decree, were going on and when this instant appeal was filed, this Court was approached with a prayer for interim stay. This Court by an order dated 20th March, was pleased to admit the appeal and granted an injunction restraining the plaintiff/respondent from obtaining payment of the sum of Rs. 20,97,005/- deposited by the petitioner/appellant with U.C.O. Bank, Salt Lake Branch, Sector- II, Bidhannagar, Kolkata-700 091 for a limited period. Thereafter since the appeal was taken up for hearing the said order was also continued.
6. The material facts of the case are as follows :
On or about 20th August, 1993, plaintiff/respondent filed a civil suit being C.S. No. 322 of 1993 claiming a decree of Rs. 20,97,005/- with interest against the appellant. It is not in dispute that writ of summons in connection with the aforesaid suit was served on the appellant on or about 8th March, 1994. Thereafter, the appellant appeared through Counsel and prayed for time to file written statement. Initially time to file written statement was extended by the Court by an order dated 6th June, 1994 for a period of eight weeks.
7. But, unfortunately no written statement was filed. The stand of the appellant is that the dispute raised in the plaint related to three purchase orders placed by the Material Controller Department of the Board for the years 1987-1988 in connection with purchase of conductors and other materials. At the material time in 1987-1988 the entire Department of Material Controller of the appellant was located in premises No. 13, Camac Street, Calcutta and thereafter the said Office of the Material Controller of the Board was shifted from 13, Camac Street, Calcutta to the corporate office of the Board at Bidyut Bhawan, Salt Lake City. Further case of the appellant is that in the said process of shifting there was dislocation and misplacement of several records and files in the office of the Material Controller of the Board.
8. In view of the said dislocation of records and files, the Board could not make over requisite files and records to the learned Counsel who was engaged on behalf of the Board. It is the definite case of the Board that the records got scattered and despite repeated searches through 1994-1995 the relevant records could not be located. In the meantime, the extension of time granted by the Court to file written statement ran out. The further case of the Board is that its learned Counsel, Mr. Joydeep Kar, advised the Legal Department of the Board to first locate the files and then to deliver the same to him. It is only after the files are made over to him he could draft a written statement on behalf of the Board and then could seek necessary extension of time to file the same. According to the Board the advice of the Counsel is that in absence of the records, written statement cannot be prepared and if the written statement cannot be prepared it is pointless to ask for extension of time from the Court for filing the written statement.
9. The further case of the appellant/Board is that since the records could not be made over to the learned Counsel, the learned Counsel did not prepare the written statement and did not take any step in the suit and ultimately an ex parte decree was passed in the suit in favour of the plaintiff/respondent on 15th January, 2001. By the said decree dated 15th January, 2001, the Board was directed to pay Rs. 5,31,048/- towards principal amount and the rest of the amount of about Rs. 15,00,000/- was by way of interest.
10. Thereafter, execution application was filed for executing the said decree and on 30th January, 2002 an interim order of injunction was passed by the learned Executing Court and the same was communicated to the Board by the Advocate of the plaintiff/respondent. The case of the Board is that it came to know about the decree dated 15.1.2001 for the first time from the letter of the Advocate of the plaintiff/respondent on 2nd February, 2002. The further case of the Board is that by its letter dated 5th February, 2002, the Board took steps for engaging some other learned Advocates and requested the learned Advocates to take steps for protecting the interest of the Board. Thereafter, certain orders were passed by the Executing Court in connection with the execution of the said decree. One such order was passed on 19.2.2002 and the said order was complied with by the Board and thereafter the matter was mentioned before the Executing Court and before the Executing Court, the Board prayed for extension of time for filing its affidavit-in-opposition to the execution application. Such affidavit-in-opposition was ultimately filed in the execution proceedings. In the meantime there was delay on the part of the previous advocate of the Board in giving the charge and making over the papers to the new Advocate of the Board as there was a bereavement in the family of Mr. Kar, the erstwhile Advocate of the Board. The Board obtained no objection from the previous Advocate on 18th June, 2002 and then requested the present Advocate-on-record of the Board to file an appropriate petition before the Court for setting aside the ex parte decree dated 15th January, 2001 and thereafter the application for setting aside the ex parte decree was affirmed on 21st June, 2002 and the same was moved before the learned Judge on 25th June, 2002.
11. The learned Counsel appearing on behalf of the Board submitted that on proper appreciation of these facts the learned Single Judge should have condoned the delay in making the application for setting aside and should have set aside the ex parte decree and should have directed the suit to be heard afresh on merits.
12. The learned Counsel appearing on behalf of the plaintiff/respondent on the other hand submitted that in this matter the Board entered appearance and engaged a Counsel. Thereafter the Board took a very peculiar stand by not filing its written statement and not attending the hearing of the suit on subsequent dates. As such the suit had to be decreed ex parte. The suit was filed in 1993 and the Board, despite opportunity being given to it, did not put up any defence with knowledge of the proceedings and allowed an ex parte decree to be passed in the said suit. The learned Counsel further submitted that since the decree was passed in the suit after service of summons on the Board, the period of limitation for filing an application for setting aside the decree is 30 days as per the provisions of Article 123 of the Limitation Act. In the instant case the decree was passed on 15th June, 2001 and when the execution proceeding was initiated the appellant/petitioner contested the execution proceedings and therefore, it had knowledge of the decree. Therefore, the petition for setting aside of the decree filed in June, 2002 is grossly barred by delay. And there is no explanation for such gross delay. Therefore the learned Single Judge rightly dismissed the application for setting aside the ex parte decree. The learned Counsel also submitted that the cases which were cited by the Counsel of the appellant/petitioner are not attracted to the facts of the case, on the other hand the judicial opinion in such matters supports the view taken by the learned Single Judge and the Appeal Court should not interfere with the exercise of discretion of the learned Single Judge.
13. In this matter both the parties have relied on certain decisions. The learned Counsel for the appellant relied on the following decisions :
a) State of Haryana v. Chandra Mani and Ors. reported in : 2002(143)ELT249(SC) ,
b) Chief General Manager, Telecom and Anr. v. G. Mohan Prasad and Ors. reported in : (2000)IILLJ1477SC ,
c) Collector, Land Acquisition, Anantnaag and Anr. v. Mst. Katiji and Ors. reported in : (1987)ILLJ500SC .
14. The learned Counsel for the plaintiff/respondent on the other hand relied on the following decisions :
a) Salimar Paints Ltd. v. Asoka Deb and Anr. reported in 99 CWN 789,
b) Salil Dutta v. T.M. & M.C. Private Ltd. reported in : [1993]1SCR794 ,
c) P.K. Ramachandran v. State of Kerala and Anr. reported in JT 1997(8) SC 189.
15. The learned Single Judge considered some of the judgments referred to above. The learned Judge while passing the order under appeal came to the conclusion that the advice which was given to the appellant by its Counsel is an absurd advice. The learned Judge refused to believe that the Legal Department of the appellant/Board 'could accept' such 'destructively absurd advice' of a Lawyer. Therefore, the learned Judge refused to accept that such a piece of advice could be at all given by a Lawyer and secondly even if any such a piece of advice was given it is impossible to believe that the Legal Department of the Board 'could accept' such advice. The learned Judge also came to the conclusion that the conduct of the appellant is not good and in view of such conduct it is not entitled to the discretionary relief of setting aside the ex parte decree. So far as wastage of public money is concerned, since that plea was taken by the appellant before the learned Judge, the learned Judge came to the finding that the employees of the Board are responsible for delayed production of the file and if they are negligent in preserving the files they are personally responsible and liable for such negligence. And if the Board wants to protect such employees, the Board must pay for it. The learned Single Judge also came to the finding that the decisions cited by the appellant before him are factually distinguishable and are not attracted to the facts of the case.
16. Now, the question is whether the learned Single Judge was right in passing the order in the facts of this case, This Court is unfortunately of the view that the learned Judge's appreciation of the facts and circumstances of this case was not proper and the order under appeal has to be reversed.
17. This Court in coming to the conclusion first proposes to consider the decisions cited by the plaintiff/respondents. The first decision which was cited was rendered in the case of Salimar Paints Ltd. In that case a suit for eviction was filed against Salimar Paints Ltd. The writ of summons was served and Salimar Paints entered appearance. Despite repeated opportunities, written statement was not filed. The suit was then fixed for hearing and evidence was taken and ex parte decree was passed on 4th October, 1988. Then an application was filed on 13th February, 1989 under Order 9 Rule 13 of the Code of Civil Procedure along with a petition under Section 151 of the Code. Thereafter, decree was sought to be executed. At that stage an application was filed for stay of execution of the decree. As the same was rejected a petition under Section 115 was filed against the said order of rejection. In the meantime an application was also filed by the petitioner under Section 5 of the Limitation Act before the 1st Assistant District Judge for condonation of delay in making an application under Order 9 Rule 13. The same was heard and rejected by the Court below on 20th July, 1991. Thereafter another application under Section 115 was filed on 9th November, 1991 and an interim order was passed upon the second application under Section 115 staying further proceedings.
18. The only question which came up for consideration before the Division Bench was whether the delay in filing the application under Order 9 Rule 13 should be condoned or not. Considering the facts of the case the Division Bench of this Court held that the defendant/Company is not a rustic, ignorant villager, but is a Private Limited Company with its office at Calcutta which is managed by educated businessmen. The learned Judge found that the Company, Salimar Paints, did not choose to co-operate with the Court. In view of such a stand by the Company, the Court felt that the Company has no right to ask for any indulgence by putting the entire blame upon the Advocate and trying to make out as if the Company was totally unaware of the nature of the proceeding. In coming to the said finding, the learned Judges relied on the judgment of the Supreme Court in the case of Salil Dutta (supra) and relying on the ratio in Salil Dutta the learned Judges of the Division Bench came to the finding that when discretionary powers has been exercised by the Court below upon consideration of relevant materials, High Court would be slow in interfering with such discretionary exercise of power unless there is a clear illegality or a total failure of justice. The Court found that in the facts of the case there was no illegality in not condoning the delay in filing the application for setting aside the decree and with those findings the revisional application was rejected.
19. In the decision in Salil Dutta (supra), the Court held that an Advocate is an agent of the party. The acts of an Advocate are the acts of the principal, mainly of the party which engages him. Though the Court observed that in certain situations the Court may, in the interest of justice, set aside the dismissal order or an ex parte decree notwithstanding the negligence of the Advocate, but the Court found that this is not an absolute rule. If this is followed as an absolute rule then it will make the working of the judicial system extremely difficult. The learned Judge of the Supreme Court came to the finding that the advice given by the lawyer of non-participation in the final hearing is an advice which no Advocate would tender and such advice should not be accepted by a Company which had its said office at Calcutta.
20. The other decision which has been cited by the learned Counsel for the respondent/plaintiff was also on the question of condonation of delay. In that case there was a delay of about 565 days. The learned Judge found that the explanation which was given for such delay was hardly acceptable. The explanation which was given was that at the relevant point of time the office of the Advocate General was 'fed up with' many arbitration matters. The learned Judges obviously found, and in our respectful view, quite rightly that such an explanation cannot be accepted by Court. Any order which condoned delay on the basis of such explanation, was set aside by the Court.
21. In the instant case facts are quite different. Mere the explanation, which has been offered in the application for setting aside the decree was not like the one which was offered in the case of P.K. Ramchandran (supra). In the instant case explanation was offered both in the application and in the affidavit-in reply and it has been recorded in the order under appeal that the learned Counsel of the plaintiff/respondent, despite opportunities been given, refused to deal with the explanation offered in the reply. The explanation, which was offered in the reply, is as follows :
I say that upon receipt of the said writ of summons issued by this Hon'ble Court, the Board took all necessary steps for contesting and opposing the instant suit by engaging Mr. Jaydeep Kar, Advocate and giving him necessary instructions in the matter to obtain time to file written statement on its behalf, and, in pursuance thereof, such time was duly obtained from this Hon'ble Court. However, as in the later part of 1988, the entire office of the Material Controller of the Board shifted from No. 13, Camac Street. Kolkata to the Corporate Office of the Board at 'Bidyut Bhawan' in Bidhannagore, Kolkata, their occurred serious dislocation and disarrangement of several records at the office of the Material Controller of the Board. In the process of such shifting numerous files, papers, and documents had been dislodged from their chronological places and bundled together, and it took considerable time for the Board to re-arrange and regularise the same in a proper and chronological manner at the office of the Department of the Material Controller of the Board at Bidyut Bhawan. Furthermore, the office of the Material Controller of the Board deals with huge numbers of purchase orders covering large quantities of materials required to be purchased by the Board each year. In particular, large number of requirements of conductor and other equipments and materials are regularly required by the Board in short intervals for setting up maintaining and keeping in operation the gigantic net work of transmission, distribution, and supply line and networks scattered all over West Bengal .... The plaintiff in the above suit, being the respondent in the instant application, was one such empanelled/enlisted vendor/tenderer/supplier of the Board in the years 1987-88. However, thereafter the said plaintiff/ respondent disassociated itself from being such empanelled/enlisted vendor/tenderer/supplier of the Board since 1989, and since August 1990, there was neither any correspondence nor any transaction by the Board with the plaintiff in connection with any Notice Inviting Tender bill recently. In view of the shifting of the office of the Material Controller of the Board in 1988 as aforesaid, the records pertaining to purchase orders during the period 1987 to 1988 got scattered and segregated from the records of the said office from 1989 onwards. It appears that in the instant case the plaintiff/ respondent had transactions with the Board in connection with three different and separate purchase orders in the year 1987-1988, one of which was left incomplete and abandoned by the plaintiff after August, 1989; When in 1994 the learned Advocate Mr. Jaydeep Kar gave instructions upon the Board to send to him all records, papers, bills ;and documents connected with the said three purchase orders for drafting the written statement of the Board in the above suit, the relevant files in which the said papers, bills and documents were kept could neither be located and/or traced out in the old records of the Material Controller's Department; I the Board. In spite of repeated searches the said files could not be located for months together. In view of the said fact the learned Advocate for the Board Mr. Jaydeep Kar advised the Legal Department of the Board to first locate and find out the said files and immediately deliver to him the same whereupon he would have the written statement of the Board prepared and then seek necessary leave of this Hon'ble Court to file the written statement of the Board, inasmuch as, it would be meaningless to make application after application for extension of time to file the written statement, when admittedly the relevant files could not be located or found out.
22. This explanation given in the affidavit-in-reply stand uncontroverted. In view of such uncontroverted explanation, the Court is of the opinion that the explanation given in this case cannot be compared with the cryptic explanation offered in a defiant manner and which has been quoted in paragraph 4 in the decision of P.K. Ramachandran's case. The Apex Court took an exception that on such exception the High Court condoned the delay and the High Court did not even record its satisfaction about the explanation offered by the defaulting party. But the explanation offered in this case is a plausible one and the Court should have adopted a liberal approach in considering the said explanation and in accepting the same for the purpose of condoning the delay in making the application for setting aside the decree.
23. So far as the setting aside of an ex parte decree is concerned from the legislative intent it is clear that the Court should liberally exercise its discretionary power in setting aside an ex parte decree. An order refusing to set aside an ex parte decree is made expressly appealable under Order 43 Rule 1, Clause (d) of the Code but an order allowing a setting aside application has deliberately not been made appealable.
24. The learned Judge in the judgment under appeal has, however, accepted that there can be no hard and fast rule in the matter of exercise of discretion by the Court while considering a prayer for condonation of delay. The learned Judge also held that while exercising discretion in the matter of condonation, the merit of the case of the defaulting party should be considered. The aforesaid two propositions which have been indicated in the judgment and under appeal are well-settled. But, unfortunately the learned Judge while dismissing the prayer for condonation and also dismissing the prayer for setting aside the decree did not consider the merits of the case of the Board.
25. Sitting in the Appeal Court it is not proper for us to make any pronouncement on the merits of the case. But from the materials which have been disclosed before us it can be said that, at least prima facie, it appears to this Court that the Board has some defence against the claim of the plaintiff/ respondent. Therefore, it cannot be said that the case of the Board is without any defence.
26. So far as the question of wastage of public money is concerned, the way the learned Judge has dealt with the same in the order under appeal, is not approved by us. Some time it is difficult to fix responsibility on any one particular employee of the Board for dislocation of records. When dislocation of records takes place as a result of shifting of office, it is not a case of record being displaced in the same office. Therefore, in such a situation finding any guilty for such dislocation of record is extremely difficult. However, by penalising employees of the Board, the drainage of public exchequer, possibly cannot be saved.
27. In the case of Collector, Land Acquisition, Anantnaag (supra), the Hon'ble Supreme Court has reiterated the liberal approach it has taken in the matter of applying the tests of 'sufficient cause' in condonation of delay. In paragraph 3 of the judgment the learned Judges have held that the Supreme Court has been consistent in taking a liberal approach. But the message has not percolated down to all other Courts. So the principles for taking such a liberal approach were again laid down. A summary of those principles would unmistakably suggest that the Court should be concerned with the cause of substantial justice as against technical consideration. The learned Judges have held that in the absence of mala fide, reasonable explanation for condonation, should be liberally considered and accepted.
28. In the instant case the learned Judge in the judgment under appeal has held that there is 6 months' delay. The learned Judge was possibly not right. The learned Judge has accepted that the Board came to know of the ex parte decree in the month of February, 2002 and it had filed its application for setting aside the decree along with the prayer for condonation of delay in the month of June, 2002. So period of 6 months have not expired. Since the learned Judge has accepted that the delay should run from the date of knowledge of the decree, there has been a delay of about 3 months if one month is excluded from the date of knowledge. Such a delay cannot be termed as gross delay.
29. The liberal approach which has been sounded in the case of Collector, Land Acquisition, Anantnaag, has been reiterated subsequently in the case of State of Haryana v. Chandra Mani (supra) and in paragraph 10 of the judgment the learned Judges, after considering all the relevant cases came to the conclusion that the expression 'sufficient cause' should be considered with pragmatism and in a justice-oriented approach. The technical attitude of explaining 'sufficient cause' for every day's delay should be avoided. The learned Judges also held that Government or Governmental Agencies are plagued by various factors and delay on their part may be liberally construed and have to be given the slightly different consideration. The reasons for delay of Government or Governmental Agencies have been explained in paragraph 7 of the judgment. The learned Judges have also noted in paragraphs 8 & 9 of the said judgment that in several cases the Courts have condoned the delay of over one year and in one case a three-Judges Bench of the Apex Court in the decision noted in paragraph 9 of the said judgment, condoned the delay of 11 years in filing the special leave petition. Therefore, the general consensus is that the Court should decide matters on merits unless 'the case is hopelessly without merit'. (Para - 10)
30. By following those principles it cannot be said that in the instant case the learned Judge of the Court below applied the correct standards in passing the order under appeal. In the judgment rendered in the case of Chief General Manager, Telecom, the Court again reiterated the principle that the question of condonation of delay is a discretion of the Court depending upon the circumstances of each case and the Court should make effort to avoid a burden on the exchequer while exercising such discretion.
31. Following the aforesaid principles this Court is of the view that the learned Judge is not right in passing the judgment under appeal. The judgment is therefore, set aside.
32. This Court condones the delay in making the application for setting aside the ex parte decree and also sets aside the ex parte decree since this Court is of the opinion that sufficient cause was shown by the Board in not appearing before the suit Court. But some amount of negligence on the part of the Board cannot be ruled out and this Court also observes that the advice which was given by the Counsel of the Board who was looking after the Board's matter at the relevant point of time was an irresponsible advice. The Counsel should have appeared before the Court and explained the difficulties of the Board. Instead of that the Counsel refused to appear before the Court while holding the power on behalf of the Board. This is something which this Court does not approve of.
33. For the reasons aforesaid the appeal is allowed. The decree dated 21st January, 2001 is set aside with costs assessed at Rs. 30,000/-. The said amount must be paid by the Board in favour of the plaintiff/respondent within a month from date. Since the ex parte decree is set aside the suit has to be heard expeditiously. This Court gives 6 weeks time from today for the Board to file its written statement. The said 6 weeks time from today will expire on 25th July, 2003. If the Board does not file its written statement within that period, the suit will be posted for hearing before the appropriate Bench without the written statement of the Board.
34. The appeal is therefore allowed with costs and directions as indicated above.
Debiprasad Sengupta, J.
I agree.
Later :
35. Prayer for stay of the operation of the judgment and order is considered and rejected.