Rajeev Futela v. Gurcharan Kumar

1. This petition filed under Article 227 of the Constitution of India, impugns the order dated 13.03.2023 passed by the Civil Judge-01, Central District, Tis Hazari Courts, New Delhi (‘Trial Court’) in CS SCJ 2170/2021, dismissing the Petitioner’s application filed under Order IX Rule 7 Code of Civil Procedure, 1908 (‘CPC’).

2. The Petitioner herein is the defendant and the Respondent is the plaintiff in the civil suit.

3. The learned counsel for the Petitioner has placed on record the orders passed by the Trial Court and the orders passed by the Appellate Court under cover of an index dated 01.08.2023, the same are taken on record. 3.[1] The learned counsel for the Petitioner states that the civil suit has been filed by the Respondent, herein for recovery of Rs. 1,96,975/- (Rupees one lakh Ninety-Six Thousand Nine Hundred Seventy-Five Rupees Only) with respect to the goods dispatched to the Petitioner by the Respondent. 3.[2] He states that it is the defence of the Petitioner herein that the payment towards the goods delivered stands paid and the Petitioner herein is in possession of a receipt executed by the Respondent, which duly evidences the payment of monies and receipt thereof by the Respondent. 3.[3] At the outset, he states that he admits there has been negligence on the part of the Petitioner herein, in filing his written statement upon receipt of service of summons on 18.07.2022. 3.[4] He states that as per the process server report the Petitioner was served on his WhatsApp with double tick, but since the Petitioner is of 55 years of age, suffering from ailment and not well-versed with using WhatsApp, he was not aware that the summons have been served on him for appearing in the matter and therefore he could not appear before the Trial Court. He further states that due to non-appearance of the Petitioner, the Trial Court closed the right of the Petitioner to file his written statement and proceeded ex parte. 3.[5] He states that, however, grave prejudice will be caused to the Petitioner if he is not permitted to place on record his written statement and the suit is decided without his defence being considered. 3.[6] The learned counsel for the Petitioner prays that legal costs be imposed on the Petitioner for the delay, however, he may be granted an opportunity to file his written statement and lead his evidence. 3.[7] He states, on instructions, that the Petitioner shall not seek any adjournment before the Trial Court and will remain present on each date. He further states that the Petitioner shall take all steps to ensure that he is duly represented by a counsel and no adjournment is sought on the ground of unavailability of the counsel.

4. None appears for the Respondent despite advance service.

5. This Court has considered the submissions counsel of the Petitioner and perused the paper book.

6. The Petitioner was proceeded ex parte on 22.09.2022 and the matter was thereof listed for plaintiff’s evidence on 12.12.2022. However, no evidence was led by the plaintiff on the said date. 6.[1] The Petitioner herein filed an application under Order IX Rule 7 CPC on 07.02.2023 for setting aside the ex parte proceedings, which was dismissed by the Trial Court vide impugned order dated 13.03.2023. The suit was still at the stage of plaintiff evidence and it had not been led. However, the Trial Court in the facts of the case was not persuaded by the explanation offered by the Petitioner for his non-appearance and dismissed the application. 6.[2] The Petitioner herein impugned the order dated 13.03.2023 by filing an appeal MCA DJ 30/2023; notice was issued on the said appeal and proceedings before the Trial Court was stayed until the next date of hearing i.e. 17.07.2023. 6.[3] Upon an objection being raised by the Respondent with respect to the maintainability of the appeal, Petitioner herein conceded to the said objection and agreed to avail his remedy in accordance with law. Accordingly, the appeal was dismissed as withdrawn on 19.07.2023, with liberty reserved to the Petitioner herein and the direction for stay also stood vacated.

7. This Court has been apprised that ex parte plaintiff evidence stands recorded on 24.05.2023 and the matter is listed for judgment and clarification thereon on 03.08.2023. The Petitioner herein neither cross examined the plaintiff witness nor addressed final arguments.

8. A learned Single Judge of this Court in Randhir Singh v. Urvashi Suri decided in CM (M) 717/2023 dated 04.05.2023 after taking note of the judgments of the Supreme Court and this Court, while considering the issue of closing the right of the defendant to file written statement, held that the effort of the Court is always that disputes should ordinarily be decided on merits. The relevant portion of the said judgment reads as under:

9. In the opinion of this Court the impugned order dated 13.03.2023 passed by the Trial Court does not suffer from any infirmity, but in the light of the above said dicta, this Court deems that it would subserve the interest of justice if the defence of the Petitioner is considered and a judgment is passed on the merits of the claim raised by the Respondent. It will also preclude arguments of non-consideration of the defence of the Petitioner and save multiplicity of proceedings. The summons in the suit were issued on 02.08.2022 and the Petitioner entered appearance on 13.03.2023 when the suit was still at the stage of pleadings. In the opinion of this Court the Respondent can be compensated for the delay caused by the Petitioner by imposing legal costs.

10. In the facts and circumstances of this case, this Court deems it appropriate to set aside the order dated 13.03.2023, subject to the condition that the Petitioner will take the following steps within three (3) days i.e. by 03.08.2023 and file:-

(i) The written statement duly supported by an affidavit;

(ii) Affidavit of admission/denial of documents filed by the plaintiff along with the plaint;

(iii) List of documents relied upon by the defendant;

(iv) Cost of Rs.15,000/- to be paid to the respondent herein on or before