Full Text
HIGH COURT OF DELHI
Date of Decision: 15.05.2024
29189/2024 RAKESH GUPTA ..... Appellant
Through: Mr Aabhas Dahiya, Mr Akshay Rajput and Mr Lokesh Yadav, Advocate.
Through:
HON'BLE MR. JUSTICE AMIT BANSAL [Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL)
JUDGMENT
1. This appeal is directed against the judgment and order dated 01.03.2024 passed by the trial court, while disposing of the appellant’s/ defendant’s application under Order IX Rule 13 of the Code of Civil Procedure, 1908 [ in short, CPC].
1.1. The appellant/ defendant moved the application under Order IX Rule 13 of the CPC for setting aside the ex-parte decree dated 28.07.2023.
2. The record shows that the respondent/ plaintiff instituted a suit on 13.04.2021 for recovery of Rs.30,55,264/-.
3. The record also discloses, something which the counsel for the appellant/ defendant does not dispute, that the appearance in the suit action was made on behalf of the appellant/ defendant on 10.12.2021.
3.1. The order sheet dated 10.12.2021 discloses that the counsel for the appellant/ defendant was granted time to file a written statement and the matter was referred to a mediator to attempt a settlement between the disputants.
4. Furthermore, what is not disputed, even before us, by the counsel for the appellant/ defendant is that there was no appearance on behalf of the appellant/ defendant on 23.01.2023. 4.[1] This is also reflected in the order sheet of the said date i.e., 23.01.2023.
5. It is against this backdrop that an ex-parte decree came to be passed on 28.07.2023.
6. Counsel for the appellant/ defendant says that since the appellant/ defendant was not served with the complete set of the case papers, a written statement could not be filed.
6.1. For this purpose, our attention has been drawn to the copy of the application prepared in this behalf. This application is dated 07.04.2022 and is accompanied by a sworn-in affidavit of the appellant/ defendant dated 16.04.2022.
7. On being queried, counsel for the appellant/ defendant says that the said application is not on the trial court record. 7.[1] The reasons furnished by the counsel for the appellant in this behalf is that no judge was assigned to the Court as the presiding judge was posted in the Delhi Judicial Academy.
8. Furthermore, it is claimed by the counsel for the appellant/defendant that since the brother of the appellant/ defendant was murdered, the appellant/ defendant did not move the trial court early with an application for setting aside the ex-parte judgment and decree. 8.[1] In support of this plea, our attention has been drawn to the copy of the death certificate issued in the name of one, Mr Amit Kumar Gupta. This certificate discloses that Mr Amit Kumar Gupta died on 04.09.2022.
9. The record also discloses that the execution proceedings have already been triggered and despite opportunities being given, the appellant/ defendant has failed to file his affidavit, as directed by the executing court, in response to the application under Order XXI Rule 41 of the CPC. 9.[1] This is evident from the perusal of the order sheets dated 19.01.2024, 19.02.2024 and 27.02.2024.
10. Furthermore, the order sheets of the executing court disclose that because the appellant was not present for examination with regard to the assets, bailable warrants have been issued qua the appellant/ defendant, followed by warrants of arrest. 10.[1] These aspects emerge upon perusal of the order dated 24.04.2024 passed by the executing court.
11. We are told in the course of the hearing by the counsel for the appellant/ defendant that the executing court has fixed the case for orders today at 4:00 PM.
12. The argument of the learned counsel for the appellant that because the complete set of the case papers were not served to the appellant/ defendant, he could not file a written statement in the suit action is incredulous, to say the least.
13. As indicated above, the appellant/ defendant entered appearance through his counsel on 10.12.2021 and was granted time to file a written statement. 13.[1] Thereafter, no attempt was made to write to the counsel for the respondent/ plaintiff to furnish a copy of the case papers.
14. The appellant/ defendant could have either inspected the file or sought a certified copy of the case papers in the event, if he genuinely wanted to file a written statement in the matter.
15. The record of the trial court shows that even on 19.04.2022, the appellant/ defendant was represented by one Ms Priya, who, evidently, acted as a proxy for the counsel-on-record of the appellant/defendant.
16. Although, the order sheet bears the signature of the reader of the presiding judge, there was, perhaps, no submission made that the entire set of the case papers have not been furnished to the counsel for the appellant/ defendant. 16.[1] This position continued to obtain on the dates of hearing which followed thereafter.
17. Therefore, the argument that the appellant/ defendant had prepared an application in and about 16.04.2022 for articulating the grievance that he had not been supplied the case paper appears to be unbelievable.
18. The only inference that can be drawn at this juncture is that the appellant/ defendant was served with the entire set of the case papers, despite which a written statement was not filed.
19. The other reason furnished that because the brother of the appellant/ defendant had been murdered, therefore, there was delay in filing a written statement cannot help the cause of the appellant/ defendant because the brother’s death took place on 04.09.2022 whereas, the ex-parte decree was passed on 28.07.2023.
20. In our view, the appellant/ defendant has failed to show sufficient cause for not appearing on the dates when the suit was called out.
21. The reasons furnished, as indicated above, do not persuade us to interfere with the impugned judgment and order.
22. Accordingly, the appeal is dismissed.
23. Consequently, pending applications shall stand closed.
RAJIV SHAKDHER, J AMIT BANSAL, J MAY 15, 2024