Daya Industries and ors. Vs. Jaswant Singh - Court Judgment

Excerpt:
the case focused on the petition under order 9 rule 13 of the civil procedure code, 1908, seeking to set aside ex parte order, on the ground of negligence on the part of the counsel - it was observed that the applicant remained negligent throughout the case and mistake of counsel would not be always a sufficient case - thereforee, in the present case, the respondent was found to be negligent and had failed to file the reply even after over four years - thereforee, it was ruled that there was sufficient cause seeking to set aside the ex parte order - - aggarwal, learned counsel appearing on behalf of the petitioners /non-applicants, however, submitted that in the present case the respondent and his counsel both have been negligent right from the initial stage of the case and the applicant had failed to show that there was sufficient cause for the non-appearance of the respondent and his counsel on a large number of hearings.sat pal, j.(1) this is an application filed on behalf of sardarjaswant singh(hereinafter referred to as the respondent) under order 9 rule 13 read with section151 of the code of civil procedure and in this application it has been prayed that ex-parte order dated 13/11/1991 passed by this court be set-aside and the respondent be allowed to file the affidavit by way of evidence. notice of this application was issued to the petitioners and the petitioners in their reply dated 15/01/1992 have controverter the averments made in the application.(2) mr. manmohan singh, learned counsel appearing on behalf of the respondent/applicant submitted that the respondent had engaged shri 0.p. sharma,advocate in this case and it was because of negligence on the part of the said advocate that the respondent was directed to be proceeded against ex-parte vide orders dated 15/03/1991 and thereafter since the said advocate did not appear on behalf of the respondent an ex-parte order was passed by this court on 13/11/1991 whereby the petition was accepted and the design bearingno.158951 in clause i dated 16/05/1988 was ordered to be cancelled. the learned counsel submitted that the respondent should not be allowed to suffer for the inaction or omission on the part of his advocate. in support of his contention,learned counsel placed reliance on a judgment of the supreme court in the case of rafiq & anr. v. munshilal & anr, : [1981]3scr509 .(3) mr. aggarwal, learned counsel appearing on behalf of the petitioners /non-applicants, however, submitted that in the present case the respondent and his counsel both have been negligent right from the initial stage of the case and the applicant had failed to show that there was sufficient cause for the non-appearance of the respondent and his counsel on a large number of hearings. he submitted that the present case was not one of those cases where it could be said that the respondent was an innocent person having suffered merely because his advocatedefaulted. he further submitted that in the present case the impugned order dated 13/11/1991 had been passed on merits. he, thereforee, contended that the application was without any merit and be dismissed with costs. in support of hiscontention, learned counsel placed reliance on a judgment of this court in the case of gloria chemicals v. rk. cables & ors., : air1988delhi213 .(4) i have given my thoughtful consideration to the submissions made by learned counsel for the parties and have perused the records. from the records,i find that after the notice of the petition was served on the respondent shri o.p.sharma, advocate appeared on behalf of the respondent on 9/03/1989.thereafter none appeared on behalf of the respondent on 16/05/1989 and 1 1/09/1989. on 4/10/1989 final opportunity was granted to the respondent to file the reply. the issues were framed on 30/01/1990 and the parties were directed to file affidavits by way of evidence and the case was directed to be listed before the deputy registrar on 16/04/1990. however, none appeared on behalf of the respondent on 16/04/1990 and again on 23/05/1990. on 18/07/1990 at the request of learned counsel for the respondent the case was adjourned to 16/11/1990 for admission/denial of documents.thereafter none appeared on behalf of the respondent on 16/11/1990 and 14/12/1990. on 4/03/1991 at the request of learned counsel for the respondent the case was adjourned for 15/03/1991 as the learned counsel for the respondent wanted to seek instructions from his client. thereafter none appeared on behalf of the respondent on 15/03/1991 and the respondent was set down ex-parte and the case was fixed for arguments on 23/05/1991. finally the impugned order were passed on 13/11/1991.(5) from the facts stated hereinabove, it is evident that even no reply was filed on behalf of the respondent though the respondent was directed to file the reply within four weeks in terms of orders passed on 9/03/1989. from this it is also evident that the respondent was throughout negligent and had not been pursuing his case. as held by this court in the case of gloria chemicals (supra) mistake of the counsel in certain circumstances can be taken into account for setting aside an ex-parte decree but there is no general preposition that mistake of counsel by itself is always a sufficient ground. as stated hereinabove, besides the mistake of thecounsel, the respondent himself had been quite negligent as even no reply was filed on behalf of the respondent.(6) in view of the above discussions, i do not find any merit in this application and the same is dismissed. the parties are, however, left to bear their own costs.