Pt. Gopal Prasad Shastri & Anr. v. Subhash Chand Verma & Ors.

1. This first appeal is filed under Order 43 (1)(d) CPC against the impugned order of the Court below dated 29th August, 2012 by which the Court below has dismissed the application filed by the appellants-defendant nos. 1 and 2 under Order 9 Rule 13 CPC. The application under Order 9 Rule 13 CPC was filed for setting aside the ex-parte judgment and decree dated 20th November, 2009 for a sum of approximately Rs. 2,32,000 along with interest. The subject suit was filed on account of the claim of respondent nos. 1 and 2-plaintiffs of their being maliciously prosecuted by 2014:DHC:2717 the appellants along with other persons as a result of which the respondent nos. 1 and 2-plaintiffs were imprisoned for four days and and were suspended from their job for 24 months. 2(i) The Court below has dismissed the application by arriving at two important conclusions. The first conclusion is that the appellants-defendant nos. 1 and 2 falsely contended that the suit was compromised on the appellants-defendant nos. 1 and 2 paying an amount of Rs. 10,000/- to the respondent nos. 1 and 2-plaintiffs,inasmuch as there was no proof of payment of this amount of Rs. 10,000/- to the respondent nos. 1 and 2plaintiffs and much less a document existed to show the settlement of disputes which were the subject matter of the suit. To the aforesaid conclusion of the Court below I would like to add that it would be very strange that the suit for approximately an amount of Rs. 2,32,000 with interest would be settled for a sum of Rs. 10,000/-. The suit was originally filed for a sum of Rs. 5 lakhs approximately, but the same was decreed for an amount about Rs. 2,32,000/- in favour of the respondent nos. 1 and 2plaintiffs.

(ii) The second reason given for dismissing the application was that the appellants-defendant nos. 1 and 2 took up a false case that they had not authorized one Rakesh Aggarwal, Advocate and in any case it was the duty of the appellants-defendant nos. 1 and 2 to appear in the suit. The relevant paragraphs of the impugned judgment is para no. 8 and which reads as under:- “8. The ground, on which the applicant/defendant no. 1 is seeking the setting aside of the judgment/decree dated 20.11.2009 is that he had not authorized any Mr. Rakesh Aggarwal to appear on his behalf in the Hon’ble High Court and that after the receipt of the notice/summons from the Hon’ble High Court, he had settled the matter with the plaintiff/non-applicant for the sum of Rs. 10,000/- and that the plaintiff had assured him that he would withdraw that instant suit. Therefore, whether defendant no. 1 had authorized Mr. Rakesh Aggarwal or not to appear on his behalf, would be inconsequential, as he has himself admitted that he had received the summons from the Court. Once a party received the summons from the Court, he is duty bound to appear before the Court either in person or through an authorized pleader and if the defendant no. 1 had not authorized Mr. Rakesh Aggarwal to appear on his behalf then it was his duty to appear in person, in which he failed. Moreover, if any compromise had been effected and an amount of Rs. 10,000/- had been paid by him to the plaintiff there would have been a written document/receipt, issued by the plaintiff to the effect, but no such document has been brought on record by the applicant/defendant no. 1. Therefore, the averments made by the applicant/defendant no. 1 are bald one and totally unsubstantiated and therefore, do not inspire any confidence and cannot be relied upon. When a party willfully do not appear before the Court, such a party had to face any consequent orders, which are passed by the Court. Principal of natural justice have not been flouted in the instant case and therefore, the contentions raised on behalf of the applicant/defendant are without any force.”

3. I completely agree with the conclusion of the trial Court and I find that the appellants-defendant nos. 1 and 2 are setting up a false case. In fact appellants-defendant nos. 1 and 2 are taking up conflicting stands because at one place it is claimed that they were not served in the suit but in the same breath it is stated and contended that they were served and they compromised the suit with the respondent nos. 1 and 2-plaintiffs for a sum of Rs. 10,000/-. Also I may note that if Mr. Rakesh Aggarwal, Advocate had appeared without any instructions of the appellants-defendant nos. 1 and 2, then, the appellants would surely have issued a notice to the said Rakesh Aggarwal, if not having filed a complaint against him in the Bar Council. Therefore, all the defences of the appellants-defendant nos. 1 and 2 are sham and taken up only with the object to delay and defeat the money decree which has been passed in favour of the respondent nos. 1 and 2-plaintiffs.

4. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs. MAY 21, 2014 VALMIKI J. MEHTA, J. pg