Itihad Motors Pvt Ltd v. Paras Dass Jain Charitable Trust

1. The present petition has been filed seeking setting aside of the impugned order dated 23rd January, 2019 and consequential setting aside of the judgment/order dated 3rd October, 2013 by which the suit for possession filed by the Respondent/Plaintiff (hereinafter, “Plaintiff”) was decreed.

2. The brief background is that the Plaintiff, which is a charitable trust, filed a suit for possession, mesne profits and damages against the Petitioner/Defendant (hereinafter, “Defendant”) in respect of the plot of land situated in Khasra No.429/61, Village Azadpur, Delhi (now forming part of Kewal Park Extension, behind Power House, Azadpur, Delhi) (hereinafter, “suit property”). The suit was instituted on 14th November,

2002. Issues were framed in the suit on 16th October, 2003. The Plaintiff concluded its evidence on 16th May, 2012. Opportunity was given to the Defendant to cross-examine the Plaintiff’s witness, which opportunity was not availed as the Defendant did not appear on 24th August, 2012 and 7th February, 2013. 2019:DHC:5171

3. On 7th February, 2013, the Court proceeded ex-parte and listed the matter for ex-parte Plaintiff’s evidence.

4. The decree was, thereafter, passed on 3rd October, 2013. The operative portion of the judgment/decree is set out herein below:

5. The Defendant thereafter moved an application under Order IX Rule 13 CPC primarily taking the ground that it had an employee, namely, Mr. Narender Upreti, who had been handed over the responsibility of doing the pairvi of the case. However, Mr. Upreti did not conscientiously follow up the matter and till December, 2014 the Defendant was not aware that the suit has been decided. Thus, the application under Order IX Rule 13 CPC came to be filed in January, 2015. The said application was decided by the Trial Court vide order dated 18th January, 2018. The findings of the Trial Court were that neither had Mr. Upreti ever appeared before the Court, nor was he the authorised representative of the Defendant. Further, the Trial Court came to the conclusion that on several occasions, the Managing Director and other Directors of the Defendant were present in Court. Thus, they had complete knowledge of the suit. The Defendant having had knowledge of the suit, the Trial Court found that there was no justification for non-appearance in the matter and for not filing the application under Order IX Rule 13 CPC in time. The Trial Court concluded in paragraph 7 that the application is bereft of merit and finally, also dismissed the application on merits.

6. This order of the Trial Court, dated 18th January, 2018, was challenged by way of appeal. In the appeal, on 23rd January, 2019, the Appellate Court confirmed the order passed by the Trial Court. The findings of the Appellate Court are that no fault could have been found with the order of the Trial Court. The Appellate Court found that the counsel for the Defendant had continuously been appearing in the matter and had suddenly stopped appearing. Thus, his client also had knowledge of the case and could not have blamed the counsel. The present petition also challenges the said order.

7. The submission of Mr. R. K. Saini, ld. counsel appearing for the Defendant is that the Plaintiff had itself delayed its evidence from 2002 till 2012, when the affidavit of PW-1 was tendered for the first time. He submits that for defaults only on two dates, the Defendant has been punished in a disproportionate manner. The endeavour of the Court should be to decide the matter on merits and not merely on technical and procedural issues. He submits that his client has been occupying the suit property for more than 40 years and the suit was, in fact, followed-up by his client with utmost diligence. The default of the counsel was not even within the knowledge of the Defendant, who should, therefore, not be made to suffer on account of non-appearance of the counsel. He submits that the Plaintiff’s delay in leading the evidence has been countenanced by the Trial Court, however, the Defendant has been penalised extremely heavily. The order sheets show that the Defendant has not delayed the matter in any manner.

8. On the other hand, ld. counsel for the Plaintiff submits that his first and foremost objection is that the application under Order IX Rule 13 CPC is not accompanied by any application for condonation of delay. He relies on Article 123 of the Limitation Act, 1963, which prescribes a limitation period of thirty days from the date of the ex-parte decree or in cases where summons/notice was not issued, the date when the applicant had knowledge of the ex-parte decree. He submits that this was not a case where the Defendant was not served with the summons and hence there is deemed knowledge of the date of decree qua the Defendant. Thus, in the present case, since the Defendant always had knowledge of the proceedings, the limitation period should be calculated from the date of the decree. As the application under Order IX Rule 13 CPC was not even accompanied with an application for condonation of delay, it could not have been entertained. He further submits that the Trial Court has arrived at the categorical conclusion that the entire story in respect of Mr. Upreti is merely an excuse which the Defendant sought to rely upon in order to cover up the delay in filing the application.

9. Ld. counsel relies upon two authorities i.e., M/s. Bhagwan Dass Bros. v. Ghulam Ahmed Dar and Ors., AIR 1992 Delhi 22 and Dr. Jagdish Prasad v. Satya Narain Singh & Ors., AIR 1982 Patna 37 to support his argument that if the application for condonation of delay is not filed, the application under Order IX Rule 13 CPC is not liable to be entertained.

10. He further relies upon the judgment of the Delhi High Court in Gloria Chemicals v. R. K. Cables and Ors., AIR (1988) Delhi 213 to submit that even if it is presumed that the counsel was in default, the application under Order IX Rule 13 CPC is silent as to what action the Defendant took against its earlier counsel. Thus, the same is not a ground to set aside the decree.

11. This Court has heard the submissions of the counsels for both parties and has perused the order sheets. A perusal of the proceedings before the Trial Court clearly shows that the suit was instituted in 2002 and PW-1’s evidence was recorded in 2012. The order dated 16th May, 2012 records that PW-1 has tendered his evidence and the counsel for the Defendant seeks time to go through the file. On 24th August, 2012, none was present on behalf of the Defendant and costs of Rs.1,000/- were imposed by the Court upon the Defendant. Again, on 7th February, 2013, the Court awaited the counsel for the Defendant and called the matter in three rounds. Even on the third call, when none appeared for the Defendant, the Court proceeded against the Defendant ex-parte. Thereafter, the final judgment has been delivered by the Trial Court only on 3rd October, 2013. Admittedly, the application under Order IX Rule 13 CPC was filed only on 16th January, 2015 i.e., two years after the ex-parte decree was pronounced. In the application, there is no reason given whatsoever to explain the delay between 2013 to 2015. The application is completely cryptic and does not explain what the Defendant did to establish due diligence between 2013 to

2015. No facts have been pleaded to justify non-appearance. The only explanation given is that the Defendant acquired knowledge of the order passed by the Court only in December, 2014, when its so called employee informed the Defendant about the disposal of the suit.