TEK TRAVELS PRIVATE LIMITED v. GURSAHIB SINGH SETHI & ORS.

16. Accordingly, a prayer is made that a lenient approach be adopted by this Court to recall the order dated 04.11.2022.

17. On the other hand, Mr. Aayush Kevlani, the learned counsel appearing on behalf of the plaintiff submits that the present application is not maintainable inasmuch as Order IX Rule 7 CPC provides that where the Court has adjourned the hearing of a suit ex parte against a defendant, such defendant may appear and assign a good cause for his previous non-appearance, on or before such adjourned date of hearing, however, in the present case, although the defendants were proceeded against ex parte on 04.11.2022 and the matter was next listed for arguments on 25.01.2023, but the present application has been filed long thereafter, only on 18.08.2023.

18. He submits that instead of appearing and attempting to assign a good cause for their previous non-appearance at the adjourned date of hearing, i.e. on 25.01.2023, the defendants remained unrepresented on the said date. Even after the first adjourned date, the matter was listed on 17.02.2023, as well as on 23.05.2023, when too, no attempt whatsoever was made on behalf of the defendants.

19. He relies on the decision of this Court in Subhash Kumar vs. Delhi Development Authority 2 to contend that as the defendants have not explained the extraordinary delay in filing of the present application, either by way of an application seeking condonation of delay or otherwise, the present application is not maintainable.

20. He submits that the summons in the present suit was issued long back on 04.10.2021. Furthermore, personal service of the summons along with copies of the plaint, as well as, the plaintiff’s application under Order

XXXIX Rules 1 and 2 CPC was also done by the plaintiff upon the defendants’ personal e-mail id, viz., gursahib@sahibjitravels.com, on 01.11.2021.

21. He submits that even after passing of this Court’s order on 10.10.2022 whereby the right of the defendants to file their written statement stood closed, [which was upheld by this Court vide judgment dated 06.09.2024 passed in O.A. 75/2023 preferred by the defendants] the plaintiff filed I.A. 17462/2022 (under Order XIII-A), in which it was expressly mentioned that the defendants’ right to file written statement has been closed, was also personally served upon the defendants on 11.10.2022, i.e., long before passing of the order on 04.11.2022. Therefore, there is no explanation whatsoever offered by the defendants of their own defaults and negligence.

22. He further submits that the defendants have also failed to provide any explanation for filing the purported complaint dated 09.08.2023 before the Bar Council of Delhi after the delay of nine months from the date of the order under consideration. Therefore, the purported complaint, as well as, the instant application is merely an afterthought and a counterblast to the plaintiff’s I.A. 17462/2022 seeking summary judgment.

23. He submits that even if the present application is to be allowed, the defendants would still not be entitled to file written statement, inasmuch as, their right stood closed by this Court prior to the passing of the order dated 04.11.2022.

24. Mr. Kevlani, in support of his submission, relies upon the decision of this Court in Harinder Singh vs. Kuldeep Singh[3] to submit that as the defendants have failed to show any ‘good cause’ as contemplated in Order

IX Rule 7 CPC, they are not entitled to any benefit of alleged misconduct or negligence of their erstwhile counsel for this purpose, as it is a settled law that failure of a lawyer to appear is not necessarily a ‘sufficient/good cause’ and the conduct of the parties is also to be seen. The application, therefore, deserves to be dismissed, in law, as well as facts.

25. I have heard the learned counsel for the plaintiff, as well as, defendants and have gone through the material on record.

26. It is admitted fact that summons were served on all the defendants on 27.10.2021. Thereafter, on the next date of hearing, i.e., 10.11.2021, Mr. D. Hasija, learned counsel, had appeared before the learned Joint Registrar on behalf of the defendants and sought time to file the written statement. On 04.02.2022, Mr. Hasija had again appeared and sought time to file the written statement on the ground that as the defendants have been suffering from corona virus, the written statement could not be filed. Thereafter, on 18.04.2022, Mr. Hasija though appeared, but sought withdrawal of his vakalatnama from the case. However, it was observed by the learned Joint Accordingly, it was undertaken by Mr. Hasija to inform the defendants to make alternative arrangements and to appear on the next date of hearing. After that, on 14.07.2022, Ms. Prachi and Mr. Kartik Chaudhary, learned counsel had appeared on behalf of the defendants and sought time to file vakalatnama within one week and the matter was fixed for completion of pleadings on 10.10.2022.

27. On 10.10.2022, astonishingly, Mr. Hasija had again appeared, even after making statement before the learned Joint Registrar on 18.04.2022 that he is seeking withdrawal of his vakalatnama, and again sought more time to file written statement on behalf of the defendants.

28. However, the learned Joint Registrar after noting that till date, as neither vakalatnama nor written statement on behalf of the defendants has been filed, closed their right to file the written statement. Thereafter, the matter was placed before the Court for 22.11.2022. On 27.10.2022, though the matter was listed for hearing of some fresh applications, the bench did not assemble and the matter was simply re-notified for 04.11.2022 i.e., on the date fixed. On 04.11.2022 when the I.A.No.17462/2022 (under Order XIIIA filed by the plaintiff) was taken up by the Court for hearing, since none appeared on behalf of the defendants, they were proceeded against ex parte.

29. The sequence of events would reveal that though the erstwhile counsel for the defendants was regularly appearing before this Court, he was seeking adjournments on one pretext or the other. A perusal of the complaint dated 09.08.2023 filed by the defendant no.1 under Section 35 of the Advocates Act, 1961 against his erstwhile counsel with the Bar Council of Delhi shows that it specifically mentions that the erstwhile counsel had represented the defendant no.1 in unprofessional, casual and negligent manner while handling his cases, which includes the present case, as well as, two other cases of the defendant no.1 pending before Tis Hazari Courts. It is also mentioned in the complaint that in one of the cases pertaining to the defendant no.1, which was being handled by Mr. Hasija, the defendant no.1’s right to file written statement was closed in the year 2022. Hence, it has been prayed in the complaint that strict action be taken against Mr. Hasija for conducting himself in unprofessional manner.

30. From the contents of the complaint, it is clear that the defendants are aggrieved by the unprofessional and negligent conduct of their erstwhile counsel and this fact is clearly borne out from the orders dated 10.11.2021, 04.02.2022, 18.04.2022, 14.07.2022 and 10.10.2022.

31. It is settled law that an innocent party should not suffer for inaction, deliberate omission, or misdemeanour of his agent. Also such a party should not be made to suffer injustice merely because his chosen advocate has defaulted.[4] It is equally settled law that expression ‘good cause’ as provided in Order IX Rule 7 is to be given a liberal interpretation.[5]

32. I am supported in my view with the decision of a coordinate bench of this Court in Himanshu Khanna & Anr. vs. Rajeev Khanna & Anr.[6] wherein this Court while enunciating the law under Order IX Rule 7, in paragraphs 32, 33, 34, 35, 36 & 37 held as under:

Rafiq and another vs. Munshilal and another, (1981) 2 SCC 788. R.K. Gupta, Prop. Sandeep Construction vs. Pink Co-operative Group Housing Society Ltd., 1995 SCC OnLine Del 835.

service of summons upon him, the Court may hear the suit exparte and pass an order against the defendant. The order so passed is legal, valid, operative and enforceable like any other order.

35. However, an ex-parte order may only be set-aside upon assigning a good cause. The legislators have specifically used the term “good cause” in Order XI Rule 7 of the CPC, therefore, giving the Court liberty to ensure that even with lesser amounts of proofs/evidences on record, the Court may allow ex-parte party to proceed.

36. The Hon'ble Supreme Court in the judgment of G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54, has held that the Courts have a wide discretion to set aside an ex-parte order on satisfying itself that there is “sufficient cause”. The relevant paragraphs of the afore cited judgment is as follows: “7……….The “sufficient cause” for non-appearance refers to the date on which the absence was made a ground for proceeding ex parte and cannot be stretched to rely upon other circumstances anterior in time. If “sufficient cause” is made out for non-appearance of the defendant on the date fixed for hearing when ex parte proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. In a case where the defendant approaches the court immediately and within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not mala fide or intentional. For the absence of a party in the case the other side can be compensated by adequate costs and the lis decided on merits”

37. The Courts have consistently laid down that the factor for deciding whether a suit shall be proceeded ex-parte by a Court is whether the party against whom the suit has been ordered exparte has been able to assign good or sufficient cause for its nonappearance. If the Court is satisfied by said reasoning of the such party, then it may set-aside the order vide which the Court proceeded ex-parte against such party.” (emphasis supplied)

33. At this juncture, apt would be to refer a decision of Hon’ble Supreme Court in Secretary, Department of Horticulture, Chandigarh and Another vs. Raghu Raj[7] wherein, in paras 23-29, it was held as under:- “23. Now, it cannot be gainsaid that an advocate has no right to remain absent from the court when the case of his client comes up for hearing. He is duty-bound to attend the case in court or to make an alternative arrangement. Non-appearance in court without “sufficient cause” cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the court and can never be countenanced.

24. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non-appearance of the advocate.

25. In Rafiq v. Munshilal [(1981) 2 SCC 788] the High Court disposed of the appeal preferred by the appellant in the absence of his counsel. When the appellant came to know of the fact that his appeal had been disposed of in absence of the advocate, he filed an application for recall of the order dismissing the appeal and to permit him to participate in the hearing of the appeal. The application was, however, rejected by the High Court, inter alia, on the ground that there was no satisfactory explanation why the advocate remained absent. The aggrieved appellant approached this Court. Allowing the appeal, setting aside the order passed by the High Court and remanding the matter for fresh disposal in accordance with law, this Court stated: (Rafiq case [(1981) 2 SCC 788], SCC pp. 789-90, para

3) “3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, … he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law.”

26. In Lachi Tewari v. Director of Land Records [1984 Supp SCC 431] rule nisi was issued by the High Court in the petition filed in

1976. After seven years, the matter was placed for hearing of rule nisi in 1983. It was the first day of reopening of courts after holidays. The petitioner had engaged three advocates. None of them, however, was available when the matter was called out. The High Court dismissed the petition and discharged rule since none appeared to press the petition for the petitioner. An application was moved on behalf of the petitioner for recalling of the order and restoration of the petition which was rejected. The petitioner came to this Court. Setting aside the order and remanding the matter to the High Court for fresh disposal and reiterating the law laid down in Rafiq [(1981) 2 SCC 788], this Court said: (Lachi Tewari case [1984 Supp SCC 431], SCC pp. 432-33, para 4) “4. The mere narration of facts would suffice to focus attention on what point is involved in this appeal. The petitioner obtained rule nisi in 1976 and waited for 7 years for its being heard. Suddenly one day the High Court consistent with its calendar fixed the matter for hearing on 21-4-1983. The petitioner had taken extra caution to engage three learned counsel. We fail to see what more can be expected of him. Further, we fail to understand what more steps should he have taken in the matter to avoid being thrown out unheard.”

27. In Mangilal v. State of M.P. [(1994) 4 SCC 564: 1994 SCC (Cri) 1308] an appeal against conviction recorded by the trial court was dismissed by the High Court for non-appearance of counsel for the appellant due to “strike” by lawyers. This Court held that dismissal of appeal by the High Court was improper. The appeal was directed to be restored to file and be heard on merits. (See also Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani [1993 Supp (3) SCC 256].)

28. From the case law referred to above, it is clear that this Court has always insisted on advocates to appear and argue the case as and when it is called out for hearing. Failure to do so would be unfair to the client and discourteous to the court and must be severely discountenanced. At the same time, the Court has also emphasised doing justice to the cause wherein it is appropriate that both the parties are present before the court and they are heard. It has been noted by the Court that once a party engages a counsel, he thinks that his advocate will appear when the case will be taken up for hearing and the court calls upon the counsel to make submissions. It is keeping in view these principles that the Court does not proceed to hear the matter in absence of the counsel.

29. In the circumstances, in our opinion, the submission of the learned counsel for the appellants has substance that the High Court ought not to have decided the appeal in absence of the appellants' counsel.”

34. The narration of facts when examined in the light of above noted legal position, makes luminously clear that the defendants/applicants have been able to show ‘good cause’ for their absence. The present application filed by the defendants/applicants is otherwise, not bared by limitation warranting condonation of delay, as contended by the plaintiff/non-applicant, inasmuch as, it is a settled law that there is no limitation for filing an application under Order IX Rule 7.[8]

35. Insofar as decision relied upon by Mr. Kevlani in Harinder Singh (supra) is concerned, the same is distinguishable on facts, as the applicant/defendant therein was not able to show ‘good cause’ to the Court. The applicant therein was proceeded ex parte in the year 2008 by the Trial Court, whereas, an application seeking setting aside of ex parte order was filed in the year 2010. Moreover, it was specifically noted by this Court that the applicant therein apart from stating reason that he had engaged a new counsel in the year 2010 who inspected the case file in January 2010 and thereafter, the applicant came to know that he has been proceeded ex parte in January 2008, did not furnish any reason as to what was the occasion for applicant to engage a new counsel and on which date new counsel was engaged. In this backdrop, the application seeking to set aside ex parte order Please see:- (i) Sangaram Singh vs. Election Tribunal, kotah, AIR 1955 SC 425; (ii) Rajasekar vs. Govindammal, 2020 SCC OnLine Mad 18065. was dismissed.

36. Similarly, the decision in Subhash Kumar (supra) will also not advance the case of the plaintiff, inasmuch as, in that case the defendant therein was negligent in timely filing an application seeking setting aside of ex parte order and also, no cogent explanation was provided by the defendant therein for assigning ‘good cause’, which, as noted above, is not the situation in the present case.

37. In view of above discussion, I am satisfied that the defendants have been able to show ‘good cause’ for recalling the order dated 04.11.2022 to the extent they have been proceeded ex parte. Accordingly, to such an extent, the order dated 04.11.2022 is recalled. The defendants shall be heard in answer to the suit, as if they had appeared on the day fixed for their appearance.

38. It may be clarified that the clock would be set back to the order dated 04.11.2022, which obviously means that the right of the defendants to file written statement as stood closed vide order dated 10.10.2022 will not be revived as the said order precedes the order dated 04.11.2022. Ordered accordingly.

39. The application is disposed of in above terms.

VIKAS MAHAJAN, J. JANUARY 10, 2025 N.S. ASWAL