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o/o ].O.10.2011
Present: Ms Neha Gupta, Advocate for the Appellant.
Mrs Rekha Palli & Ms Amria Prakash, Advocates for
Respondent No. 1.
+ FAO(OS) Nos. 202-203/2011
* The respondent filed a suit against the appellants qua a partnership business of winding wire and allied insulating material, carried on from a shop. The respondent claims that the business was initially established in April, 1990, a partnership with his maternal uncle, but due to expansion of business an independent shop was taken by the respondent who also established the business of manufacture of copper enameled wire in a shop taken on rent. In the course of business the respondent became acquainted with one Naresh
Kumar, who was running a factory, and the said Naresh Kumar in turn introduced appellant no. 1 to the respondent. lt is in these circumstances that the respondent accepted appellant NO. 1 as a partner in the business as per an oral partnership on
07.11.1999. The appellant no.3 is stated to be the son of appellant no. 1, who alongwith an employee Gian Chand, used to sit in the shop to manage day-to-day work.
Differences arose between the parties in January, 2000 resulting in dissolution of the firm and accounts were made.
The respondent claims that the appellant no. 1 failed to clear
],r.
FAO(OS) Nos. 202-203/2011
2011:DHC:11022-DB ti,.
__& the accounts.
The cause of action for filing the suit is stated to have arisen on account of certain documents stated to have been signed by the respondent under the threat of life to the appellants. These documents included an undertaking, pro- note, statement of account and some blank papers. This resulted in complaints being made by the respondent and on direction of the Chief Metropolitan Magistrate, FIR no. L3|2QO3 was registered against the appellants. The suit was filed praying for a decree of declaration that the documents executed were null and void and further a decree of rendition of accounts against the appellants' alongwith 18% interest.
The appellants entered appearance and filed written statement alongwith documents. The admission and denial of documents was completed by the two parties on 05.07.2005.
The court passed an order directing the parties to remain present in court for recording of statement under Order X Rule 8 of the Code of Civil Procedure, 1908 (in short the 'Code') before framing of the issues. The date fixed was 19.07.2005. The appellants failed to remain present on the said date and the counsel sought an adjournment. The matter was adjourned to
10.08.2005 with a direction to the parties to comply with the order dated 05.07.2005. On 10.08.2005 again a request for adjournment was made on behalf of the appellants and the
Present: Ms Neha Gupta, Advocate for the Appellant.
Mrs Rekha Palli & Ms Amria Prakash, Advocates for
Respondent No. 1.
+ FAO(OS) Nos. 202-203/2011
* The respondent filed a suit against the appellants qua a partnership business of winding wire and allied insulating material, carried on from a shop. The respondent claims that the business was initially established in April, 1990, a partnership with his maternal uncle, but due to expansion of business an independent shop was taken by the respondent who also established the business of manufacture of copper enameled wire in a shop taken on rent. In the course of business the respondent became acquainted with one Naresh
Kumar, who was running a factory, and the said Naresh Kumar in turn introduced appellant no. 1 to the respondent. lt is in these circumstances that the respondent accepted appellant NO. 1 as a partner in the business as per an oral partnership on
07.11.1999. The appellant no.3 is stated to be the son of appellant no. 1, who alongwith an employee Gian Chand, used to sit in the shop to manage day-to-day work.
Differences arose between the parties in January, 2000 resulting in dissolution of the firm and accounts were made.
The respondent claims that the appellant no. 1 failed to clear
],r.
FAO(OS) Nos. 202-203/2011
2011:DHC:11022-DB ti,.
__& the accounts.
The cause of action for filing the suit is stated to have arisen on account of certain documents stated to have been signed by the respondent under the threat of life to the appellants. These documents included an undertaking, pro- note, statement of account and some blank papers. This resulted in complaints being made by the respondent and on direction of the Chief Metropolitan Magistrate, FIR no. L3|2QO3 was registered against the appellants. The suit was filed praying for a decree of declaration that the documents executed were null and void and further a decree of rendition of accounts against the appellants' alongwith 18% interest.
The appellants entered appearance and filed written statement alongwith documents. The admission and denial of documents was completed by the two parties on 05.07.2005.
The court passed an order directing the parties to remain present in court for recording of statement under Order X Rule 8 of the Code of Civil Procedure, 1908 (in short the 'Code') before framing of the issues. The date fixed was 19.07.2005. The appellants failed to remain present on the said date and the counsel sought an adjournment. The matter was adjourned to
10.08.2005 with a direction to the parties to comply with the order dated 05.07.2005. On 10.08.2005 again a request for adjournment was made on behalf of the appellants and the
r jr matter was adjourned to 10.01.2006. The respondent/plaintiff continued to remain present on the aforementioned dates. On
10.01.2006 neither the counsel nor the appellants were present and the matter was adjourned to 25.04.2006. Since none appeared on that date the appellants were proceeded ex-parte and the respondent was directed to file an affidavit by way of evidence. Thereafter in view of the unrebutted testimony of respondent, a decree was passed on 25.05.2007 qua the relief of declaration; the relief of accounts was denied as no material evidence was produced in that behalf.
The appellant after almost two years moved an application under Order iX nule 13 of the Code for setting aside of the ex- parte decree putting the blame on their counsel for not pursuing the matter properly and in not informing them of the requirement of their presence. The exchange is stated to have taken place only telephonically when purportedly the counsel informed them not to remain present as the matter was a civil dispute. The application filed by the applicants had been dismissed by the impugned order dated 2I.OL.20Il.
As stated aforesaid the appellants after two years seek to shift the blame on their counsel which has resulted in ex-parte decree. The appellant no. 1 is stated to have come to Delhi on
2L.04.2009 to find out the progress of the case but was unable i,/
-|b to trace out thg counsel and engaged an alternate counsel, whg then inspected the records. The application was filed soon thereafter. ln our considered view the most important aspect is that the appellants did appear for admission/ denial of the documents and thereafter the case was listed for framing of issues on 19.07.2005. Numerous dates were thereafter fixed for recording of statement, before issues, for the parties, but the appellants chose to absent themselves and subsequently even the counsel stopped appearing. No document has been placed on record to show that the appellants ever addressed any communication to their counsel seeking status of the case. This is situation obtained for about two years.
It is unbelievable that the appellants having appeared for the admission/ denial of documents, their counsel could have asked them not to come on the various dates fixed for their appearance for recording of statement before issues, when the counsel was taking adjournment for the very purpose before the court. The appellants obviously chose not to appear in court as they were apprehending queries from the court relating to the controversy at hand prior to the framing of issues. The appellants absence resulted in the decree being passed. The resultant consequences which arose impacted it appears the
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10.01.2006 neither the counsel nor the appellants were present and the matter was adjourned to 25.04.2006. Since none appeared on that date the appellants were proceeded ex-parte and the respondent was directed to file an affidavit by way of evidence. Thereafter in view of the unrebutted testimony of respondent, a decree was passed on 25.05.2007 qua the relief of declaration; the relief of accounts was denied as no material evidence was produced in that behalf.
The appellant after almost two years moved an application under Order iX nule 13 of the Code for setting aside of the ex- parte decree putting the blame on their counsel for not pursuing the matter properly and in not informing them of the requirement of their presence. The exchange is stated to have taken place only telephonically when purportedly the counsel informed them not to remain present as the matter was a civil dispute. The application filed by the applicants had been dismissed by the impugned order dated 2I.OL.20Il.
As stated aforesaid the appellants after two years seek to shift the blame on their counsel which has resulted in ex-parte decree. The appellant no. 1 is stated to have come to Delhi on
2L.04.2009 to find out the progress of the case but was unable i,/
-|b to trace out thg counsel and engaged an alternate counsel, whg then inspected the records. The application was filed soon thereafter. ln our considered view the most important aspect is that the appellants did appear for admission/ denial of the documents and thereafter the case was listed for framing of issues on 19.07.2005. Numerous dates were thereafter fixed for recording of statement, before issues, for the parties, but the appellants chose to absent themselves and subsequently even the counsel stopped appearing. No document has been placed on record to show that the appellants ever addressed any communication to their counsel seeking status of the case. This is situation obtained for about two years.
It is unbelievable that the appellants having appeared for the admission/ denial of documents, their counsel could have asked them not to come on the various dates fixed for their appearance for recording of statement before issues, when the counsel was taking adjournment for the very purpose before the court. The appellants obviously chose not to appear in court as they were apprehending queries from the court relating to the controversy at hand prior to the framing of issues. The appellants absence resulted in the decree being passed. The resultant consequences which arose impacted it appears the
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). criminal proceedings emanating from the FIR lodged by respondent. lt is this which appears to have propelled the appellant to re-agitate the issue after two years and seek setting aside of ex-parte decree by putting the blame at the door of the counsel.
We may notice that no complaint was filed against the counsel initially. lt was only after the appellant had filed the application under Order lX Rule 13 of the said Code, was a complaint sought to be instituted before the Bar council, on
2L.O6.2OIO. A copy of that complaint has not been placed on record nor particulars given; though the learned counsel for the appellant had shown to us a copy of complaint bearing NO. 6I|20LO which purports to be the complaint in question.
In our view there is no cogent explanation whatsoever for the absence of the appellants, The endeavour to rake up the issue after two years lacks bonafide. There is nothing on record which would have us believe that there was sufficient cause for the appellant absence on the date when an ex parte decree was passed against him. We thus find no merit in appeal. lt is accordingly dismissed. a<-
SANJAY KISHAN KAUL, J. i
?.-lt*ilu ocToBER 10, 2011 kk
RAJIV SHAKDHER, J.
We may notice that no complaint was filed against the counsel initially. lt was only after the appellant had filed the application under Order lX Rule 13 of the said Code, was a complaint sought to be instituted before the Bar council, on
2L.O6.2OIO. A copy of that complaint has not been placed on record nor particulars given; though the learned counsel for the appellant had shown to us a copy of complaint bearing NO. 6I|20LO which purports to be the complaint in question.
In our view there is no cogent explanation whatsoever for the absence of the appellants, The endeavour to rake up the issue after two years lacks bonafide. There is nothing on record which would have us believe that there was sufficient cause for the appellant absence on the date when an ex parte decree was passed against him. We thus find no merit in appeal. lt is accordingly dismissed. a<-
SANJAY KISHAN KAUL, J. i
?.-lt*ilu ocToBER 10, 2011 kk
RAJIV SHAKDHER, J.
JUDGMENT