J.D Kapoor, J.:— The applicant-Judgment Debtor(J.D) is Delhi Development Authority. It has moved an application under Order 9 Rule 13 CPC for setting aside an ex partedecree passed on 22nd January, 1990 restraining the applicant/JD from interfering with the possession, management and control of the respondent/(Decree Holder) DH and their tenants/Iicencees and all others in possession of the suit premises on the premise that the respondent/DH became the owner in possession of the suit properties by purchasing the same from erstwhile various private owners through duly registered sale deeds from 1880 till 1905-06. Instead of accepting the decision with grace which stands on the edifice of overwhelming documentary evidence in the form of revenue records/sale deeds etc projecting the ownership of the respondent/DH with possession over the sjuit property since 1880, the ap-plicant-DDA has taken upon itself the task of nullifying the ownership and possession of the respondent-DH on the strength of a stray entry of 187-98 in the revenue record in which ‘Crown’ was shown as the owner but in 1909, the said entry was corrected by Mr. White, the then Head Assistant Commissioner as it was found to have been wrongly made. It was again dug up in 1982 and the respondent/DH as branded as licencee and for breach of term of the licence, licence was revoked. What an irony’. For the sake of clarity, applicant/JD shall be referred as “Defen-dant/DDA” and respondent/DH as “Plaintiff’ hereinafter.
2. The background of various events that led to the filing of the instant suit followed by the instant application needs to be recapitulated in brief.
3. The suit land measuring 30,929 sq. yds falls in Khasra No. 40, Banskoli. As per the revenue record of year 1865, its original khasra no was 206 of which Sh. Jiya Ram, Chhajju Ram sons of Sh. Ghisu were shown as owners. Till 1880, the position continued to be the same. Shri Badri Dass popularly known as Badri Bhagat purchased these properties from various owners from 1880 onwards. The revenue records showed Badri Dass as owner in possession till 1905-06, the year of his death. After the death of Sh. Badri Dass, the name of his son Ramji Dass was entered in the revenue record as owner in possession. He died in 1936 and after his death his son Shyam Sunder continued to be in possession of suit property. In 1944, Shyam Sunder formed plaintiff No. 1-Society to save the property from encroachment. It is pertinent to mention here that in the revenue record of 1897-1898, ‘Crown’ was shown as owner but no mutation ever took place in favour of the Government and subsequently this entry as found to be wrongly made and was corrected by Mr. R.B White, the then Head Assistant Commissioner vide his order dated 1.11.1909 which was duly accepted by the Government. In 1939, certain lands were acquired for the new Capital of India but the s it property did not form part of those lands. So much so after the enforcement of Urban Land Ceiling Act, inquiries were initiated from plaintiff Nos. 1 and 3 with regard to suit land but it was found that these have been exempted from the provisions of said Act.
4. Thus for the last more than 120 years, right from Badri Dass upto his successors, these lands have been in their complete control and management as owners in possession. On 1/9th August, 1947, through the registered lease deed the plaintiff-Society granted lease of 14,300 sq. yds out of the aforesaid land to Sh. M.S Golwalkar, the then RSS Chief.. Later on two further lease deeds of additional areas were also executed in favour of Sh. M.S Golwalkar in 1970. Plaintiff No. 1 leased another 1700 sq. yds of the suit property to M/s Bej Nath Brothers by Regd. Lease Deed. As and when plaintiffs wanted to raise any construction they always sought permission of L&DO, Delhi Improvement Trust, Delhi Development Authority and Municipal Corporation of Delhi as the case was and last such permission was obtained on 5.3.1982
5. Another significant fact emerging from the pleadings of the parties is that one Chet Ram Aggarwal vide his letter dated 8.5.1978 to the then Hon'ble Minister for Works and Housing, Govt. of India, representing the Society had written that in view of award No. 117 dated 2.7.1913 order imposing lagan (land revenue of Rs. 50/- per annum) passed arbitrarily by the then Collector and in contravention of the terms of the award be cancelled and the name of Badri Bhagat Jhandewalan Temple Society (Regd) be entered into the ownership column of the revenue record as owner in possession. Revenue record was rectified accordingly.
6. Suddenly after more than 50 years, DDA_who is a successor of Delhi Improvement Trust woke up and started digging the grave by invoking Section 54A of the U.P Town Improvement Act VIII of 1919 as extended to the Province of Delhi and served a notice dated 11.5.1982 upon the plaintiffs for revocation of licence on the ground that the said land was given to the plaintiff for religious purposes only on licence basis and it has been reported by the field staff of DDA that plaintiff No. 1-Society is using only about 1048 sq. yds out of the aforesaid land for religious purposes and the remaining land is being used for purposes other than religious. With the sledge of hammer DDA revoked the licence and directed the plaintiffs to vacate the said land and handover its possession to the Defendant-DDA.
7. The action of the DDA gave rise to the instant suit and made the plaintiffs to unearth the aforesaid records from the archives showing their ownership and possession on the suit land from 1860 till date.
8. The chronological details relevant for the disposal of the instant application as culled out from the record need to be referred in brief. These are as under:—
(i) The suit was filed on 19th December, 1982 and presented before the Court on 20th December, 1982 and an ex parte order of injunction restraining the defendants from interfering with the possession, management and control of the plaintiffs including its tenants/licencees regarding the premises in suit pursuant to the DDA's notice dated November 30,1982 was passed.
(ii) After being served with the summons of the suit the Defendant-DDA filed the written statement on 16th April, 1983.
(iii) At the initial stage one Mr. H.S.Mak, Advocate was representing the Defendant and subsequently Mr. V. KMakhija, Advocate took over the reins. He continued representing the Defendant-DDA from 18th April, 1983 till 22nd October, 1984. Proceedings remained in hybernation till 19th November, 1986 when Mr. S.N Gupta appeared on behalf of the plaintiffs but no one appeared on behalf of the Defendant.
(iv) Since 19th November, 1986 none appeared on behalf of the Defendant and on couple of occasions the court notices were also served upon the Defendant and when there was no response on as many as 11 to 12 dates of hearing, the Defendant was proceeded ex parte on 8th August, 1988 and the suit was listed for recording of ex parte evidence. Plaintiff was allowed to file the affidavit by way of evidence.
(v) Ex partearguments on merits were heard on 5th December, 1988 and the judgment was reserved. The judgment was delivered and announced on 22nd January, 1990 whereby the suit was decreed in terms of prayers (a), (b), & (c) of the plaint and the decree was passed.
(vi) On 22nd January, 1990 itself Mr. V. KSeth, Senior Law Officer of the Defendant-DDA happened to see the list and found that the suit was fixed for pronouncement of the judgment. On learning that the judgment has been pronounced and suit has been decreed Mr. V. KSeth moved an application for obtaining certified copy of the judgment on 31st January, 1990 and obtained the same on 5th February, 1990 and moved the instant application on 21.2.1990 for setting aside the ex partejudgment.
9. According to the Defendant it was for the first time on the date when the ex partejudgment was announced that it came to know that the Defendant had been proceeded ex parte. The cause that prevented the Defendant from appearance as disclosed by the Defendant is that some time in May, 1985 Mr. Harish Malhotra, Advocate was entrusted the case and Mr. Malhotra never informed the Defendant about the hearings nor did he care to appear on behalf of the applicant on the dates of hearings and it was by chance that Mr. V. KSeth stumbled upon the cause list of 22nd January, 1990 and came to know that DDA has been proceeded ex parte.Thus the whole load of blame in non-appearance of the Defendant for 5 long years has been shifted to the conduct of Mr. Harish Malhotra as if it was no concern or business of DDA to keep it abreast with the day to day status of the proceedings.
10. In order to prove this plea of alibi the defendant examined a lone witness Mr. V. KSeth, Senior Law Officer who is its star witness and who for the first time happened to chance upon the cause list of 22nd January, 1990 after having entrusted the brief to Mr. Malhotra in 1985. For five long years, no body bothered as to what had happened to the suit that sought restraint order against DDA from interfering with possession, control and management of the plaintiff over the suit property.
11. Ms. Ansuya Salwan, learned counsel for the Defendant-DDA has taken the court through the examination of Mr. V. KSeth to provide strength to her contention that the non-intimation of the dates of hearing and status of proceedings by Mr. Malhotra for 5 long years and even his non-appearance inspite of having been entrusted with the case is a sufficient cause that prevented the Defendant from appearance on various dates of hearing including the day when it was proceeded ex-parte.
12. It may not be out of place to mention at this stage that Defendant was proceeded ex-parte only on 8.8.1988 whereas the pleadings of the parties were complete in 1985 and in between suit was adjourned on large number of occasions and as a matter of abundant precaution on certain occasions court notices were issued to the Defendant which were duly served and the last such notice directed the defendant to appear in the court on 18.9.1987 Even on that day, Defendant was not proceeded ex parteand suit was adjourned for 8.8.1988 It appears that the recalcitrant attitude of the Defendant compelled the Court to proceed ex parteagainst it. The case was listed for 26.9.1988 for recording of ex-parte evidence by way of affidavits and the arguments were concluded on 5.12.1988 Judgment was reserved. It was announced on 21.1.22.1.1990 i.e after more than one year and still the applicant did not wake up as if it had gone into soporofic slumber.
13. Interestingly Mr. Malhotra was not called by the Defendant to show that he was entrusted the case after Mr. Makhija left it in the mid stream. Mr. V. KSeth was assigned the work of the High Court in January, 1990 itself and according to him when he informed the Legal Department of the DDA on 22nd January, 1990 about the ex partejudgment and sought information as to the counsel who was entrusted the case Mr. J.P Aggarwal, another Senior Law Officer of the Defendant informed him orally that the case had been entrusted to Mr. Malhotra. Though he could not recall as to whether this information was furnished by Mr. J.P Aggarwal in writing or not but the fact remains that neither documentary record has been produced by the Defendant showing the assignment of the case to Mr. Malhotra nor Mr. J.P Aggarwal has been produced to corroborate this version.
14. On the other hand Mr. L.R Gupta, learned Senior Counsel for the plaintiffs has assailed the stand of the Defendant and demonstrated several chinks in the testimony of Mr. Seth which according to him rend the whole case of the defe dant from foundation to cornice. These may be summed up as under:—
(i) The case set up in the examination-in-chief of Mr. V.K Seth is that the case was entrusted to Mr. Harish Malhotra in August, 1989 while in the application the case has been set up that the file of the suit was entrusted to Mr. Harish Malhotra in May, 1985. Thus the pleading and the statement of Mr. V.K Seth are at extreme variance.
(ii) Mr. V.K Seth came on the scene only in January, 1990 and prior thereto he did not have any personal knowledge or even from records there is not an iota of evidence that the case was entrusted to Mr. Malhotra.
(iii) Mr. Seth's information that the suit was entrusted to Mr. Malhotra is only an oral information given by Mr. J.P Aggarwal, Senior Law Officer which too has remained uncorroborated.
(iv) Mr. Seth himself in his examination has deposed that he has no. personal knowledge whatsoever about the entrustment of the case to Mr. Malhotra or his non-appearance in the suit or any action or step taken by the defendant in pursuing the suit.
(v) Neither Mr. Malhotra nor Mr. Aggarwal have been produced in evidence to support the plea of the Defendant and therefore an adverse inference is to be drawn under section 114(g) of the Indian Evidence Act.
(vi) No record whatsoever showing the entrustment of the case to Mr. Malhotra has been produced.
(vii) There is no power of attorney filed by the Defendant in favour of Mr. Malhotra nor has any register been produced showing the entrustment of the case to Mr. Malhotra.
15. In order to succeed the Defendant has to discharge certain obligations. The main obligation is to explain each and every day's delay. Second is to show sufficiency of the cause that prevented it from appearance in the proceedings. Grounds set out in the application manifestly demonstrate that the foundation of the plea is laid upon the so called entrustment of the case to Mr. Harish Malhotra in May, 1985 and his conduct in not only not informing the Defendant about the proceedings of the case but also his non-appearance for five long years inspite of the fact that on large number of dates court notices were served upon the defendant. Thus Mr. Malhotra has been branded as a villain of peace little realising that more villainous part was prayed by the department itself as for five long years nobody cared to know as to what was happening to the proceedings. This is nothing short of monumental negligence or remissness. Cat would have been out of bag if Mr. Malhotra had been produced as a witness in support of the averments or allegations made in the application. Non production of Mr. Malhotra raises adverse inference against the defendant as had Mr. Malhotra been produced, he would not have supported the case of the defendant about entrustment of the case to him. So much so, Defendant even could not produce any register or any documentary evidence to prove entrustment of the case to Mr. Malhotra. This shows that Mr. Malhotra was never engaged nor was power of attorney filed in favour of Mr. Malhotra.
16. The solitary witness Mr. V.K Seth produced by the defendant did not have any personal knowledge whatsoever about the entrustment of case to Mr. Malhotra in spite of his admission that defendant keeps the record of entrustment of each case to a particular counsel and so much so a regular office is functioning in the building of the High Court wherefrom all the matters/cases in which DDA is involved are monitored. Because of office in the building of this court, the defendant regularly receives daily cause list. If the material witness and the documents are not produced by a party, it has to suffer the adverse consequence.
17. The Supreme Court has taken consistent view for drawing adverse inference in such eventualities in cases after cases. In Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Others , AIR 1968 SC 1413, it was held that “Even if the burden of proof does not live on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.” It further held that “in case the material witness or material documentary record is not produced by a party, an adverse inference is to be drawn against such party under illustration (g) of Section 114 of the Evidence Act. Illustration (g) reads as under:—
“that evidence which could be and is not produced would, if produced, be unfavourable to the person who holds it”
18. Further Mr. V.K Seth while appearing as a witness made contradictory statement as to the stand taken by the defendant in the application. In his ex-amination-in chief, Mr. Seth stated that the above suit was entrusted to Mr. Malhotra in August, 1989 while in the application it was mentioned that the case was entrusted to Mr. Malhotra in May, 1985. In view of this material contradiction the plea set up regarding entrustment of case to Mr. Malhotra looses its veracity. He made this statement only on oral information given by the Legal Department of Defendant. His admission that it is the practice of DDA to monitor all the cases on day to day basis but he did not watch proceedings of this case for five long years and one fine morning he chanced upon the cause list of 21.1.1990 wherein the suit was listed for pronouncement that he came into action is the proverbid last straw on Defendant's back. By then it was too late as the defendant had already burnt its boat because of its own conduct.
19. Incidentally Mr. J.P Aggarwal has also not been produced as a witness. None of the officers including Mr. J.P Aggarwal and Mr. V.K Seth tried to obtain information from Mr. Malhotra either in writing or otherwise as to entrustment of case to him and its latest status. This court has taken unvarying view in several cases one of which is Gloria Chemicals v. R.K Cables and others, AIR 1988 Delhi 213 : 1988(14) DRJ 39 wherein in an application for setting aside the ex partedecree, the applicants placed entire blame on their advocate, for ex parteproceedings, judgment and decree, it was held that “although mistake of counsel in certain circumstances could be taken into account yet the negligence of advocate was not sufficient to allow their application. The words “sufficient cause” for non-appearance should receive liberal construction, so as to advance substantial justice when no negligence or inaction or want of bona fideis imputable to a party.” It was further held that “throwing blame on the counsel or the counsel's negligence in not putting appearance cannot absolve the party from his own negligence in not appearing before the court or pursuing the matter.”
20. In Gobind Parshad Jagdish Parshad v. Hari Shankar & Ors., 89(2001) DLT 675: 2001 (57) DRJ 575 the Advocate stating that he failed to appear in ap peal although it has been shown in the Regular list because his name was not mentioned, it was observed that the “Advocate's name may not have been men tioned because he had not appeared in any of the hearings and had done little more than merely filing his Vakalatnama.” While commenting upon such defences, the court observed that “it has become epidemic for parties to caste blame on their lawyer”. In another case reported in 1999 All India High Court Cases 495 (Delhi), this court took the view that “non-appearance of the counsel in the case resulting in ex-parte decree cannot be made as excuse by the defendant.
In case the defendant was not pursuing the case bona fideor diligenty, ex-partedecree cannot be set side. The following observations made by this court are quote worthy:—
“By engaging a counsel, a party to the case is not relieved of his duties and obligations in the matter. Where a party either does not brief the counsel or keeps no contact with him, it is the party who is in default and negligent and shall have to bear consequences. The negligence of the counsel cannot come to aid in an application under Order 9 Rule 13 CPC to establish sufficient cause for setting aside the ex-parte decree”.
21. Instant case is wholly on sticky wicket. Negligence of a lawyer in not appearing on one or two dates of hearing is understandable and aggrievea party can take advantage of such a negligence. But where the negligence and conduct of the party is of highest magnitude and is writ large, the party cannot take shelter behind its Advocate. If a party does not care to know about the status of its case or proceedings in the suit for years together when in the past hearings were fixed after a month, two month or so, such a party has to be shown the door and denied the discretion to set aside the ex parteproceedings or judgment passed against it. In this case the defendant did not try to know for five long years as to the status of the case. Defendant is having its office in the High Court Building itself. It has a staff and officers who maintain the record of each case and pursue on day to day basis. Senior Law Officers are there to monitor and regulate the status of cases. They maintain the record as to assignment of cases to their lawyers from time to time. Still there was non-participation in the proceedings for more than five years and the defendant wants this court to set aside the judgment. It militates against the judicial conscience.
22. Foregoing reasons pursuade me to dismiss the application being not only wholly devoid of merit but also frivolous and a feeble attempt by a drowning person to catch flimsy legal as well as factual straw. From any aspect or angle we may hold up the matter particularly in the light of the aforesaid holdings, the application has no substance whatsoever as not only the highly inordinate delay of more than five years has remained unexplained but also there is utter want of evidence to support the plea of the Defendant even to remotest extent. Every plea which even otherwise has not received any support from the evidence is difficult to ram down the throat.
21. In the result, the application is dismissed.