Judgment:
1. Whether Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported No in Digest?
1. This is a suit filed under Order 37 of CPC. A perusal of the order of this Court dated 8th April 2009 shows that in response to summons for judgment served on defendant No.1, he filed his application seeking leave to contest the suit. However, nobody appeared for defendant No.1 on 10th February 2009, 23rd March 2009 and 8th April 2009. The application, therefore, was dismissed for non-prosecution and consequently a decree for recovery of Rs.14 Lacs with costs and interest at the rate of 12% per annum w.e.f. 1st August 2003 was passed in favour of the plaintiff and against defendant No.1.
2. The case of the applicant/defendant No.1 is that late Sh. Pramod Kumar Sharma, Advocate whom he had engaged for the purpose of this suit, unfortunately expired on 16th October 2008 and, therefore, could not appear when the matter was listed. It is alleged in the application that the applicant was not aware of the demise of late Sh. Pramod Kumar Sharma, Advocate and was in a belief that the matter was being looked after. It is further alleged in the application that on receipt of notice for execution of decree, it was revealed that a decree had been passed in the absence of the applicant, who claims to be government employee.
3. IA 4377/2010 has been filed for staying the execution of the decree whereas IA 4378/2010 has been filed seeking condonation of delay in filing IA 4376/2010.
4. The applications have been opposed by the plaintiff/decree holder. It has been pointed out in the reply that appearance was filed by defendant No.1 through Sh. Prakash Arya, Advocate and Sh. Pramod Kumar Sharma, Advocate was never engaged by the applicant/defendant No.1.
5. A perusal of the orders passed by this Court from time to time would show that Mr. Pramod Kumar Sharma, Advocate appeared on behalf of applicant/defendant No.1 on 30th November 2007, 7th April 2008, 8th May 2008, 3rd July 2008 and 3rd October 2008, though no Vakalatnama in his favour has been filed. Appearance of Mr. Pramod Kumar Sharma, on a number of hearings, does support the case setup by the applicant that he was engaged by him for the purpose of this suit. Even otherwise, I see no good reason for a defendant to deliberately absent and suffer a decree, after he has not only engaged an advocate, but also put in appearance and applied for leave to contest.
6. The applicant/defendant No.1 has filed an affidavit purporting to be sworn by Sh. Sanjay Sharma, brother-in- law of late Sh. Pramod Kumar Sharma, Advocate. In his affidavit, Mr. Sanjay Sharma has stated that Smt. Manjula Sharma, wife of late Sh. Pramod Kumar Sharma had contacted him to help her in returning the briefs/files of the cases which are being handled by the deceased and the file of this case was also lying in the office of late Sh. Pramod Kumar Sharma and was being handled by him. He has further stated that defendant No.1/applicant Kuldeep Singh contacted him on 10th March 2010 to receive the brief/file of the above noted case and the complete file was returned and handed over to him.
7. In view of the provisions contained in Rule 4 of Order XXXVII of CPC, the Court may, under special circumstances, set aside the decree and if necessary stay or set aside execution and may also give leave to the defendant to defend the suit. While doing so, the Court may impose appropriate term on the defendant.
8. The expression special circumstance has neither been defined nor is it capable of a precise definition, since no one can enumerate or even contemplate circumstances which may amount to sufficient cause which could prevent the defendant from appearing and defending the suit filed against him. It is however difficult to say that if an advocate, on account of reasons beyond his control is not able to appear or if there is default in representation of the defendant on account of demise of his advocate, it would not constitute special circumstance within the meaning of Rule 4 of Order XXXVII of CPC. In Rafiq & Anr. vs. Munshilal & Anr. (1981)2 SCC 788, while considering an application for restoration of an appeal which had been dismissed in default due to non-appearance of advocate, Supreme Court inter alia observed as under:- "The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appear nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission or misdemeanor of his agent.
The answer obviously is the negative."
9. Taking into consideration all the facts and circumstances of the case, including the affidavit of Mr. Sanjay Sharma, brother-in-law of late Sh. Pramod Kumar Sharma, Advocate, I am of the view that the judgment and decree passed by this Court on 8 th April 2009, needs to be set-aside, though subject to appropriate condition. The judgment and decree dated 8 th April 2009 is accordingly set- aside subject to applicant/defendant No.1 paying cost of Rs.5,000/- and also furnishing a bank guarantee of principal amount of Rs.14 Lacs to the satisfaction of Registrar General of this Court within eight weeks from today.
10. Though while considering an application under Rule 4 of Order XXXVII the Court can and should normally consider the application for leave to contest on merits since there is no such prayer in this application and another application has already been filed for this purpose, and there is no request to take up that application along with this application, I do not propose to consider application for leave to contest on merit, at this stage The applications stand disposed of.