Full Text
HIGH COURT OF DELHI
Date of Decision: 8th April, 2025
5952/2025 DEVENDER KUMAR .....Petitioner
Through: Mr. Rajinder Singh
(through V.C.)
Through: Mr. Sanjay Kumar Mishra, Advocate.
(through V.C.)
JUDGMENT
1. Petitioner is defending a suit seeking recovery of possession, arrears of rent, damages, etc.
2. The suit was filed against Mr. Devender Kumar Mishra, who was proceeded against ex-parte on 06.09.2022.
3. When an application was moved seeking to set aside the abovesaid order and to permit him to participate in the proceedings, such application also did not find favour and was dismissed by learned Trial Court on 08.01.2024.
4. Such orders are under challenge.
5. Mr. Rajinder Singh, learned counsel for the defendant (petitioner herein) admits that the defendant was served with the summons on 06.03.2020 and pursuant to the instructions given by the defendant, his CM(M) 2462/2024 2 counsel Mr. Sameer Hashmi appeared before the learned Trial Court on 17.05.2022.
6. Though, the Vakalatnama was filed by learned counsel for the defendant but the matter was not pursued with the right earnest and since nobody appeared before the Court on 06.09.2022 from his side, noticing that no written statement had been filed, the right to file written statement was closed and the defendant was proceeded against ex-parte.
7. As noticed already, the application seeking recall of the abovesaid order has also been disallowed by learned Trial Court vide order dated 08.01.2024.
8. The contention raised in the present petition is two-fold. Firstly, the counsel, who was representing the defendant, did not appear with due diligence and rather stopped appearing altogether. It is submitted that such non-appearance never came to the knowledge of the defendant which resulted in adverse orders and it is in the abovesaid factual backdrop that the defendant seeks restoration of his defence. Secondly and more importantly, on account of pandemic of Covid-19 during the relevant period, the Court should have condoned the delay and should have set aside the ex-parte order.
9. Learned counsel for the petitioner places reliance upon Rafiq v. Munshilal, (1981) 2 SCC 788, Ram Kumar Gupta v. Har Prasad, (2010) 1 SCC 391 and In Re: Cognizance for Extension of Limitation, 2022 SCC OnLine SC 27.
10. This Court has gone through the application which the defendant had moved whereby he had sought setting aside of order dated 06.09.2022 whereby he was proceeded against ex-parte. The entire endeavour of the defendant is to blame his previous counsel. There is no explanation even CM(M) 2462/2024 3 namesake as to why the defendant did not put in any appearance before learned Trial Court till 17.05.2022 when, admittedly, they were served with summons on 06.03.2020.
11. This Court is, however, cognizant about the judgment given by Hon’ble Supreme Court in In Re: Cognizance for Extension of Limitation, 2022 SCC OnLine SC 27 and the relevant paras of the abovesaid judgment read as under:-
CM(M) 2462/2024 4 outer limits (within which the court or tribunal can condone delay) and termination of proceedings.”
12. Therefore, the period falling from 15.03.2020 to 28.02.2022 is liable to be excluded.
13. It seems that the abovesaid point was not appropriately conveyed by the defendant before the learned Trial Court. It will be, therefore, in the fitness of the things if learned Trial Court considers the abovesaid application afresh while keeping the abovesaid aspect in mind.
14. Learned counsel for the defendant/petitioner submits that he would make appropriate submissions in this regard before the learned Trial Court on the next date, which is stated to be 21.04.2025.
15. In view of the above, without making any observation on the merits of the rival contentions, the present petition is disposed of with request to learned Trial Court to consider the abovesaid application moved under Order IX Rule 7 CPC afresh after giving consideration to the directions contained in In Re: Cognizance for Extension of Limitation, 2022 SCC OnLine SC 27.
16. Since the next date before learned Trial Court is stated to be 21.04.2025, learned Trial Court shall consider the abovesaid aspect and shall pass appropriate order, after hearing both the sides, in accordance with law.
17. Needless to say, in view of the abovesaid, the subsequent order dated 08.01.2024 is also set aside.
18. The petition, along with pending applications, is disposed of.
JUDGE APRIL 8, 2025/st/pb