Shri Daya Chand v. The Assessing Officer (Enforcement) BSES Rajdhani Power Limited

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. + C.R.P. No.105/2014 and C.M. Nos.11790/2014(stay) and 11792/2014(condonation of delay)

2. This petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) is filed by the petitioner/plaintiff impugning the order of the trial court dated 19.3.2014 by which the trial court has allowed the applications filed by the respondent/defendant under Order IX Rule 13 of CPC and Section 5 of the Limitation Act, 1963 and consequently set aside the ex parte order dated 19.4.2012 proceeding the respondent/defendant ex parte and also the ex parte judgment and decree dated 11.10.2012. 2014:DHC:7219

3. The case of the respondent/defendant in the application under Order IX Rule 13 CPC was that it had engaged a counsel, and it was relying upon the said counsel, but the said counsel for the respondent/defendant in the trial court for no apparent reasons stopped appearing and therefore the fact that the respondent/defendant was proceeded ex parte was not to the knowledge of the respondent/defendant. The respondent/defendant came to know about it being proceeded ex parte when the legal retainer came to the court in another matter of the defendant company, and when he came to know about the respondent/defendant being proceeded ex parte in the case, whereafter, the new counsel was engaged who inspected the file and thereafter the subject applications under Order IX Rule 13 CPC and Section 5 of the Limitation Act, 1963 were filed.

4. At the outset, it is required to be noted that the petitioner/plaintiff did not choose to file any replies to the applications of the respondent/defendant under Order IX Rule 13 CPC and Section 5 of the Limitation Act, 1963. Once, no replies are filed, the contents of the applications have to be taken as deemed to be admitted as correct in view of Order VIII Rule 10 read with Section 141 CPC. Therefore, the petitioner having not disputed that the respondent/defendant had engaged the counsel who committed negligence by not appearing and not informing the respondent/defendant of his non-appearance in the suit, in my opinion, there is sufficient reason for the ex parte order dated 19.4.2012 and the ex parte judgment and decree dated 11.10.2012 to be set aside. After all, a litigant cannot be blamed for the fault of his Advocate.

5. Powers under Section 115 CPC are exercised only if the impugned order causes clear cut and grave injustice by the Court below acting in excess of jurisdiction or illegally exercising jurisdiction. Orders by which an application under Order IX Rule 13 CPC is allowed and the case is hence to be decided on merits, and that too when the written statement of the respondent/defendant is already on record, are not such orders which should be interfered with by this Court.

6. Learned counsel for the petitioner relied upon the following judgments:-

(i) Balwant Singh (dead) Vs. Jagdish Singh & Ors. AIR 2010 SC 3043

(ii) Dharshan Lal Dhuper Vs. Smt. Motia Rani & Ors. 110 (2004) DLT

(iii) Pradip Kumar Chakravarty (Dr.) Vs. Satish Miglani 164 (2009)

7. None of the judgments relied upon by the petitioner/plaintiff have any application to the facts of the present case inasmuch as the very fact that the petitioner/plaintiff chose not to file any replies to the applications under Order IX Rule 13 CPC and Section 5 of the Limitation Act, 1963, and hence the contents of which are deemed to be admitted, therefore, there does not arise any issue of the respondent/defendant having to prove the case of negligence of the counsel which stands admitted on account of non-filing of the replies. Also, what is sufficient cause is now well elaborated in a catena of judgments of the Supreme Court, and what is sufficient cause depends on facts of each case and since in the present case no replies have been filed to the applications under Order IX Rule 13 CPC and Section 5 of the Limitation Act, 1963 and contents of which are deemed to be admitted, clearly there is sufficient cause.

8. Dismissed.

DECEMBER 18, 2014 VALMIKI J. MEHTA, J. Ne