PAL NEWS MEDIA (P) LTD v. SUPER CASSETTES INDUSTRIES LTD

1. Challenge in the present appeals is to the order dated 11.09.2014 passed by learned Single Judge whereby the learned Single Judge has dismissed the applications preferred by the appellants under Order IX Rule 2015:DHC:3249-DB 13 CPC. Since the appeals are filed against the common order, therefore the same are being heard and disposed of by this common order.

2. Mr. J.K. Singh, the learned counsel for the appellants at the very outset seeks modification of the order dated 24.02.2015, limited to the extent that in the said order the Court has not recorded the fact that the statement given by the learned counsel stating that he will confine his arguments to assail the order under Order 9 Rule 13 of the CPC was on instructions from Mohd. Waris, the authorised representative.

3. The modification sought for is innocuous in nature, therefore, the same is allowed and the order dated 24.02.2015 is modified, limited to the extent of incorporating the fact, that the submission made by Mr. J.K. Singh, Advocate, was on the instructions received by him from Mohd. Waris – authorised representative of the appellant Company.

4. Brief facts relevant for deciding the present appeals inter alia are that two separate suits for permanent injunction, restraining infringement of copyrights, damages, rendition of accounts, etc., were preferred by the respondents. Summons of the suit and notice of the injunction applications in both the suits were served on the appellant on 25.07.2012 and the next date fixed in both the suits was 30.7.2012. An advocate by the name of Mr.Umesh Mishra had appeared on behalf of the appellants before the Court in both the suits on 30th July 2012 and both the matters were adjourned at his request, for 21.11.2012. On 21.11.2012, nobody had appeared in both the said matters on behalf of the appellants, nor had the appellants filed their written statements within the prescribed period of limitation. The learned Single Judge accordingly closed the right of the appellants to file their written statement and on the same date, proceeded ex parte against the appellants as nobody had appeared on their behalf on that date. Learned Single Judge in the order dated 21.11.2012 recorded the fact that on 30th July 2012, one Mr.Umesh Mishra had appeared on behalf of the appellants/defendants and the appellants were duly served in both the suits on 30th July 2012. Noticably, Mr.Umesh Mishra who had appeared in the suits on 30th July 2012 did not file his Power of Attorney or any memo of appearance, therefore the appearance of Mr.Umesh Mishra, Advocate on 30th July 2012 was without any authority. Ex-parte evidence in both the suits was recorded on 20.2.2013 and 9.4.2013 and ex parte judgment was passed by the court on 26.7.2013. In the application filed by the appellants under Order IX Rule 13 of the CPC, in both the suits, the common stand taken was that on 30th July 2012, proxy counsel Mr.Umesh Mishra had appeared before the court on behalf of Mr. Mrinal Kumar, Advocate but on the subsequent dates, Mohd. Waris, Advocate could not appear and nor could he file written statement as the counsel – Mr. Mrinal Kumar had to go to his home town because his brother was suffering from cancer.

5. It was also the case of the appellants that they were not aware of the proceedings which had taken place in the Court and it was only on 9.7.2013 when a demand notice dated 6.7.2013 was received from the respondents in the matter C.S. (OS) No. 2185/2012 whereafter, necessary inquiries were made by the appellants about the said matters from their advocate. It was further averred that the Advocate did not respond to the calls of the appellants and when the appellants searched the website of the Delhi High Court therefrom it transpired to the appellants, that they were preceded ex parte on 21.11.2012 and the ex parte judgment was passed against them on 26.07.2013. In support of the application, the appellants also filed supporting affidavit of Mr. Mrinal Kumar, Advocate.

6. The aforesaid applications filed by the appellants were strongly opposed by the respondent/plaintiff. Both the said applications were dismissed by the learned Single Judge by the impugned order dated 11.09.2014.

7. Assailing the legality and correctness of the aforesaid order Mr. J.K. Singh, counsel for the appellants vehemently submits that the learned Single Judge has not appreciated the fact that the application filed by the appellants was duly supported by the affidavit given by the advocate himself, who was engaged by the appellants to appear in the said matter. Counsel further argued that the learned Single Judge has also not appreciated the fact that the brother of the counsel for the appellants was suffering from cancer due to which he could not cause his appearance before the Court and therefore, the non appearance on behalf of the appellants was neither deliberate nor intentional. Counsel also argued that the learned Single Judge should have given an opportunity to the appellants to contest the suit on merits, instead of dismissing the application by adopting a hyper technical approach.

8. Refuting the contentions of the learned counsel for the appellants, Mr. K.K. Khetan, Advocate representing the respondent submits that the appellant is a well known media company with sufficient man power and therefore they cannot take a plea that they were not aware of about the dates fixed in the Court in their matters. Counsel also argued that the appellants failed to appoint any advocate to represent in both the matters. This is evident from the fact that neither Mr.Umesh Mishra, Advocate filed his Power of Attorney nor any Power of Attorney was filed by Mr. Mrinal Kumar, Advocate. Counsel further argued that in the application filed by the appellants, the appellants have failed to disclose as to when Mr. Mrinal Kumar, Advocate was engaged by them and on which date, he had left Delhi to attend to his brother at his home town or during which period his brother was under treatment for cancer and as to when he returned back to Delhi, in the absence of these details there was no material before the Court, which would bequeath benefits to the appellants. Counsel thus, submits that the application filed by the appellants was most vexatious and frivolous and therefore the same have been rightly dismissed by the learned Single Judge.

9. We have heard the submissions made by learned counsel for the parties and also gone through the impugned order and the material placed on record.

10. These appellants were duly served in both the suits on 25.07.2012 and this fact has not been denied by the appellants. One Mr.Umesh Mishra, Advocate had appeared in both the suits on 30.07.2012 and it is an admitted fact that Mr.Umesh Mishra failed to file his Power of Attorney. The presence of Mr. Mrinal Kumar, Advocate has no where been recorded in the proceedings of both the cases and Power of Attorney of Mr. Mrinal Kumar, Advocate was also never filed by him. It is also a fact admitted on record that the appellants failed to disclose in both the applications as to when they had engaged Mr. Mrinal Kumar, Advocate to represent them in the matters and why Mr. Mrinal Kumar, Advocate had failed to appear on the dates fixed by the learned Single Judge. The appellants have further failed to disclose as to on what date Mr. Mrinal Kumar, Advocate left Delhi to attend to his brother who was stated to be suffering from cancer, and as to when he had returned back from his home town. The appellants have also not disclosed as to why Mr. Mrinal Kumar, Advocate did not take any steps to find out the status of both the suits after returning back from Bihar. The appellants have also further not disclosed as on what dates they had contacted Mr. Mrinal Kumar, Advocate to find out the status of their cases. The negligence on the part of the appellants is writ large. It is a settled legal position, that where sufficient cause is not shown by the applicants for seeking setting aside the ex parte order and the applications are based on vague, evasive and false averments, then in such matters, ex parte decree shall not be set aside. In the facts of the present matter, the conduct of the appellants has been grossly negligent and the appellants failed to disclose any sufficient cause for not causing appearance in the matters on the dates fixed before the Court and the main plea taken by the appellants was that their advocate - Mr. Mrinal Kumar, had gone to attend to his brother at Bihar did not inspire any confidence of the Court, due to the lack of proper details and supporting evidence and therefore, we do not find any illegality, perversity or irrationality in the reasoning given by the learned Single Judge in dismissing the applications preferred by the appellants. In this regard reliance can be placed on the judgment Supreme Court in the case of Parimal v. Veena @ Bharti 2011 3 SCC 545 wherein the Court has examined the scope of Order IX Rule 13 of the Code of Civil Procedure, 1908 after examining the various judicial precedents on the provision, the Court held as under: