Citation Codes

Equivalent Citations

citation codes

Case Number

FAO 153/2007 and CM No. 5632 of 2007

Attorney(S)

Ashwani Goel
Anil Goel
Saurabh Banerjee
Sandeep Sethi

Judges

J.M Malik, J.

Acts

Order 9 Rule 13 read with Section 151, CPC and Section 5 of the Limitation Act.
Order 9 Rule 7 and Order 9 Rule 13 read with Section 151, CPC,
Order 9 Rule 13 read with Section 151, CPC
SECTION 5 LIMITATION ACT
Order 9 Rule 13, CPC.5.

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Smart Summary

Structured Summary of the Opinion (J.M. Malik, J.)

Factual and Procedural Background

The trial Court, by its order dated 24 March 2007, dismissed applications made under Order 9 Rule 13 read with Section 151, CPC and under Section 5 of the Limitation Act. The present appeal challenges that order.

The factual matrix (as set out in the opinion) is:

On 12 January 2006 no one appeared for the appellant/defendant; upon the respondent/plaintiff's request the matter was adjourned to 7 February 2006.
On 7 February 2006 nobody appeared for the appellant; the respondent filed an affidavit and documents that day; the appellant was proceeded against ex parte and the matter adjourned to 15 February 2006 for ex parte evidence.
On 15 February 2006 the statement of PW‑1 was partly recorded and the matter adjourned to 27 March 2006; on 27 March 2006 the appellant again did not appear and the matter was adjourned to 5 April 2006.
On 5 April 2006 the appellant did not appear; PW‑1's statement was recorded and the plaintiff closed its evidence; arguments were heard and judgment was fixed for 10 April 2006.
On 10 April 2006 the respondent filed written arguments and judgment was pronounced at 4 p.m. on the same day; subsequently an application under Order 9 Rule 13 read with Section 151, CPC accompanied by an application under Section 5 of the Limitation Act was filed seeking setting aside the ex parte order and the subsequent judgment and decree. It was averred the appellant only became aware of the ex parte order on 26 October 2006.

Legal Issues Presented

Whether the ex parte order dated 7 February 2006 and the subsequent judgment and decree dated 10 April 2006 could be set aside under Order 9 Rule 13 read with Section 151, CPC on the grounds advanced by the appellant.
Whether the delay in filing the application/appeal could be condoned under Section 5 of the Limitation Act by establishing a "sufficient cause".

Arguments of the Parties

Appellant's Arguments

The appellant averred that lawyers were abstaining from appearing in Court because of an ongoing strike relating to bifurcation of Courts; this prevented appearance and was a reason for adjournments/nonappearance.
The appellant said he had instructed his Advocate (Mr. Bhalerao) in January 2006 and was informed the strike meant nothing was happening, and that he would be informed when work resumed.
The appellant's partner contacted the Advocate in June 2006 and was told Courts were closed and that the Advocate would find out further once Courts reopened on 6 July 2006.
Paragraph 6 of the appellant's application asserted the defendant became extremely busy with business, was facing financial crisis/disputes with purchasers, and had suffered losses due to torrential rains in Mumbai; as a result the defendant lost track of the suit and was under the bona fide impression he would be intimated of any development.
There was a communication gap between the appellant and his Advocate; the appellant later changed counsel and discovered the suit had been decreed ex parte on 10 April 2006; the appellant contended he should not suffer for alleged negligence of his counsel.
The appellant relied upon these grounds both to seek setting aside of the ex parte decree and for condonation of delay under Section 5 of the Limitation Act.

The opinion does not contain a detailed account of the respondent/plaintiff's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohini Mehra v. Mallbu Estate Pvt. Ltd., 2006 IV AD (Delhi) 570	This information was not available in the provided opinion.	The trial Court relied upon this authority in dismissing the application (as recorded in the opinion).
Gargya Research Instruments v. State Bank of India, 2006 IV AD (Delhi) 658	This information was not available in the provided opinion.	The trial Court relied upon this authority in dismissing the application (as recorded in the opinion).
New Bank of India v. Marvels (India), 2001 VI AD (Delhi) 356	This information was not available in the provided opinion.	The trial Court relied upon this authority in dismissing the application (as recorded in the opinion).
Kuldip Singh v. Oriental Bank of Commerce, 110 (2004) DLT 516	This information was not available in the provided opinion.	The trial Court relied upon this authority in dismissing the application (as recorded in the opinion).
Overseas Employment v. A.S. Bakshi, 1986 (1) All India Rent Control Journal 131	This information was not available in the provided opinion.	The trial Court relied upon this authority in dismissing the application (as recorded in the opinion).
Mala Dang v. R.K. Cables, 33 (1987) DLT 11	This information was not available in the provided opinion.	The trial Court relied upon this authority in dismissing the application (as recorded in the opinion).
Anil Sharma v. Wiezmani Consultants & Anr., 2005 I AD (DELHI) 467	This information was not available in the provided opinion.	The trial Court relied upon this authority in dismissing the application (as recorded in the opinion).
Ex‑Capt. Harish Uppal v. Union of India, 2002 X AD (S.C) 357 : (2003) 2 SCC 45	The duty of an Advocate who accepts a brief to attend trial even during strikes; participating in strike is unprofessional and cannot be a ground for adjournment; courts must hear matters despite strikes; advocates may be answerable for consequences to clients if nonappearance is solely on grounds of strike (as quoted in the opinion).	The Court relied upon this authority to reject the appellant's plea based on lawyers' strike, holding that strike by advocates is not a valid cause for nonappearance and that advocates are obligated to attend.
State of Rajasthan v. Nav Bharat Construction Co., (2005) 11 SCC 197	The Apex Court rejected condonation of delay where the cause was stated to be a long strike of government employees but the application was vague as to when strike commenced/terminated; vague strike pleas may be rejected (as quoted in the opinion).	The Court cited this authority to reinforce that a vague or unparticularised plea of closure/strike is not sufficient to obtain relief; it supported rejecting the appellant's strike-based explanation.
Latika Industries v. Mr. G.S. Arora, MANU/DE/8623/2006	Reference is made in the opinion to S.P. Chengalvaraya Naidu for the principle that courts must guard against abuse of process and that a person who approaches the court on falsehood may be thrown out; the opinion cites Latika Industries which in turn quotes S.P. Chengalvaraya Naidu.	The Court invoked this authority to underline that courts will not entertain falsehoods and that litigants must come with clean hands; the principle was used to evaluate the credibility of the appellant's explanations.
S.P. Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs., MANU/SC/0192/1994	The principle (quoted in the opinion) that finality of litigation cannot be made an engine of fraud; parties who come with falsehood have no right to approach the Court and can be summarily thrown out.	The Court referred to this principle (via Latika Industries) to emphasise that false or dishonest explanations will not be tolerated and that finality of litigation and prevention of fraud are important considerations.
Sow. Kamalbai w/o Narasaiyya Shrimal & Ors. v. Ganpat s/o Vithalrao Gavare, MANU/MH/0865/2006	The expression "sufficient cause" in Section 5 of the Limitation Act cannot be erased by adopting an excessively liberal approach; there must be some cause which can be termed sufficient for condonation of delay (as quoted in the opinion).	The Court relied on this authority to assert that the appellant did not establish a 'sufficient cause' for condonation of delay and therefore no interference with the impugned order was called for.
Municipal Corporation of Delhi v. Vasudev Sharma, MANU/DE/0540/2005	This information was not available in the provided opinion.	The opinion records that Division Benches including this authority took a similar view that no sufficient cause was shown for condonation of delay.
Union of India v. Kameshwar Dubey, MANU/DE/2954/2005	This information was not available in the provided opinion.	The opinion records that a Division Bench took a similar view that no sufficient cause was shown for condoning delay.
Ran Singh v. Union of India, MANU/DE/8526/2006	The Division Bench observed that applications were barred by time and that no reason was stated which could be termed a sufficient cause for condoning delay (as quoted in the opinion).	The Court cited this authority to support the proposition that where no sufficient cause is stated, condonation of delay cannot be granted.
Raghunath Singh v. Chander Krishan Mahajan, 1993 (2) Rent Law Reporter	Held that no indulgence can be shown where a party has been negligent and inactive in pursuing the matter (as quoted in the opinion).	The Court cited this authority to reinforce that negligence/inactivity does not merit indulgence in condoning delay.

Court's Reasoning and Analysis

The Court examined the appellant's averments and the materials placed before the trial Court and proceeded by stages:

The Court considered the appellant's averments (notably paragraph 6 of the application) that lawyers' strike, financial crisis, torrential‑rain losses and a communication gap with counsel prevented appearance and caused delay. The appellant claimed he only learned of the ex parte decree on 26 October 2006.
The Court found the appellant's version "too feeble an excuse" and concluded the asserted facts did not "stack up"; the opinion characterises parts of the appellant's account as untruthful, stating "Lies are lies and nothing would raise them to the status of truth."
On the lawyers' strike point the Court relied on Ex‑Capt. Harish Uppal v. Union of India, holding that advocates who accept briefs must attend even during strikes and that strikes are not a permissible ground for adjournment or for nonappearance; advocates may be answerable for consequences to clients if nonappearance is solely due to strike action.
The Court then examined subsidiary factual points: no action was taken against the appellant's Advocate (for reasons "best known to the appellant"); the appellant's claim that subordinate Courts were closed in June 2006 and would reopen on 6 July 2006 was found false as the opinion states subordinate Courts were not closed for the whole of June and regular work resumed on 1 July 2006, with court staff available in June.
The Court found the appellant produced no documentary evidence to substantiate the asserted financial crisis or losses (e.g., balance sheets, income tax records). The opinion notes the appellant "failed to produce even an iota of evidence" in support of the claimed financial reasons.
The Court reiterated the legal standard for condonation under Section 5 of the Limitation Act: there must be a "sufficient cause" — some plausible, compelling, and extenuating circumstance — to justify condoning delay. Mere unintention or general attending circumstances without substantiation is inadequate.
To support that approach the Court cited multiple authorities emphasising that 'sufficient cause' must be shown and that courts will not adopt an excessively liberal approach that undermines the requirement; further, courts will not countenance abuse of process or falsehoods used to avoid finality.
Having applied these legal principles to the appellant's pleaded facts and documentary record (or lack thereof), the Court concluded there were no extenuating or compelling reasons established that would permit condonation of delay or setting aside of the ex parte order.

Holding and Implications

Holding: DISMISSED. The appeal was held to be without merits and was dismissed.

Implications:

The direct effect is that the trial Court's order dismissing the applications under Order 9 Rule 13 read with Section 151, CPC and under Section 5 of the Limitation Act stands; the ex parte order dated 7 February 2006 and the subsequent judgment and decree dated 10 April 2006 remain in place.
The Court applied a strict approach to the requirement of establishing a "sufficient cause" under Section 5 of the Limitation Act and declined to interfere where the appellant's explanations were found to be unsubstantiated or feeble.
The opinion reaffirms principles articulated in cited authorities (including that advocates' strike is not a ground for nonappearance, and that a party must come with clean hands and documentary proof when asserting financial or other compelling reasons for delay), but the opinion does not purport to lay down a new precedent beyond applying established authorities to the facts of this case.

Appeal dismissed.

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Inder Industries v. Gemco Electrical Industries .

J.M Malik, J.— The trial Court vide its order dated 24th March, 2007, dismissed the applications under Order 9 Rule 13 read with Section 151, CPC and Section 5 of the Limitation Act. Aggrieved by that order, the instant appeal has been preferred. The facts of the present case are these. On 12th January, 2006, none appeared on behalf of the appellant/defendant. On the request of the respondent/plaintiff, the case was adjourned to 7th February, 2006. On 7th February, 2006, again, nobody appeared for the appellant but on that day the respondent filed his affidavit along with the documents. The appellant was proceeded against ex parte on the same day and the case was adjourned to 15th February, 2006, for ex parte evidence. On 15th February, 2006, the statement of PW-1 was partly recorded and the case was adjourned to 27th March, 2006. On 27th March, 2006, again the appellant did not appear and the case was adjourned to 5th April, 2006. On 5th April, 2006, also the appellant did not appear. The statement of PW-1 was recorded and the plaintiff/respondent closed its evidence. The arguments were heard and the case was adjourned to 10th April, 2006 for pronouncement of judgment. On 10th April, 2006, the respondent filed the written arguments and the judgment was pronounced at 4 p.m on the same day.

2. Thereafter, an application under Order 9 Rule 13 read with Section 151, CPC was filed for setting aside the ex parte order dated 7th February, 2006 and subsequent judgment and decree dated 10th April, 2006. The said application was accompanied by another application under Section 5 of the Limitation Act. It is averred that the appellant came to know about the ex parte order only on 26th October, 2006. The appellant set up three grounds in the said application. Firstly, the lawyers were abstaining from appearing in Court due to on going strike regarding the bifurcation of Courts. The appellant contacted his Advocate Mr. Bhalerao in the month of January, 2006, who then informed him that due to lawyers' strike nothing was happening in his case and it was simply being adjourned further. He further informed him that there was no change in circumstances and if and when the strike was over and work would commence, he would himself apprise him of the same. Secondly, Mr. Devender Jain, appellant's partner, contacted the Advocate in the month of June 2006, who informed him that the Courts are closed and he would find out about the status of the case once the Courts would reopen on 6th July, 2006. Last but not the least much emphasis was laid on para 6 of application under Order 9 Rule 7 and Order 9 Rule 13 read with Section 151, CPC, which is reproduced as hereunder:

“6. That in the meanwhile the defendant got extremely busy with its business and same on-going financial crisis/disputes with its various purchasers/buyers and as it was also already reeling under the pressure of recovering the losses suffered due to the torrential rains in Mumbai some time back, he lost track of the instant suit and was unable to call its Advocate in Delhi upto September 2006 as it was under the bona fide impression that in case of any development it would be duly intimated as ever.”

3. In the month of September, 2006, appellant came to know from various market sources that the plaintiff had started making tall claims and boasting about fact that he was now the sole owner of trade mark in issue, that is, “Wonder” the meantime, Devender Singh, appellant's partner told him over phone that the lawyers' strike had come to an end. There was a communication gap between appellant and his Advocate. His Advocate was unable to give any particulars about the case to him and there was no news of any next date and/or status of the instant case. Consequently, the appellant changed his Counsel and came to know that the suit was decreed ex parte on 10th April, 2006. It also transpired that his lawyer had stopped appearing in Court from January, 2006 onwards. It is pointed out that the appellant was thus prevented from appearing due to the abovesaid sufficient cause. The appellant is the resident of Mumbai. He should not suffer due to the negligence on the part of his Counsel.

4. The trial Court while relying upon the authorities Mohini Mehra v. Mallbu Estate Pvt. Ltd., 2006 IV AD (Delhi) 570, Gargya Research Instruments v. State Bank of India, 2006 IV AD (Delhi) 658; New Bank of India v. Marvels (India), 2001 VI AD (Delhi) 356, Kuldip Singh v. Oriental Bank of Commerce, 110 (2004) DLT 516; Overseas Employment v. A.S Bakshi, 1986 (1) All India Rent Control Journal 131, Mala Dang v. R.K Cables, 33 (1987) DLT 11; and Anil Sharma…Plaintiff; v. Wiezmani Consultants & Anr.…Defendants/Applicants., 2005 I AD (DELHI) 467 dismissed the application under Order 9 Rule 13, CPC.

5. I have heard the Counsel for the parties. Learned Counsel for the appellant has laid emphasis on para 6 of the application under Order 9 Rule 7 and Order 9 Rule 13 read with Section 151, CPC, detailed above. He stressed that reasons detailed in the said application speak for themselves and constitute sufficient cause.

6. The version given by the appellant does not just stack up. This is too feeble an excuse to be taken seriously. The appellant indulged in hubble-bubble and did not clarify the position. Lies are lies and nothing would raise them to the status of truth.

7. First of all, I will advert to the point of lawyers' strike. It is now well settled that the lawyers are bound to appear in Court during the strike period. The Apex Court in a case Ex-Capt. Harish Uppal v. Union of India, 2002 X AD (S.C) 357 : (2003) 2 SCC 45, has made the following observations. It is the duty of every Advocate who accepts brief from the client to attend trial even during strike. This was unprofessional and unethical to refuse to attend Court when strike is going on. It was further held that the Courts are under obligation to hear and decide cases and not to adjourn matter on ground of lawyers' strike. Again, participation of lawyers in strike is bad and they would be answerable for consequences suffered by their clients if nonappearance is solely on grounds of strike.

8. Similar view was taken by Apex Court regarding strike by a Government Department in State Of Rajasthan v. Nav Bharat Construction Co.) 147 : (2005) 11 SCC 197, wherein it is held:

“21. We have perused the impugned order whereby application seeking condonation of delay was rejected and the revision petition was dismissed as barred. The cause for the delay stated was long strike of Government employees. In the application seeking condonation of delay there was no mention as to when the strike commenced and terminated. The application was completely vague and the High Court committed no error in rejecting it. We find no ground to interfere with the said order. Civil Appeal No. 8053 of 2001 is, therefore, dismissed.”

9. It is pertinent to mention here that no action was initiated against the Advocate for the reasons best known to the appellant. Apart from the ground of strike, the appellant submitted that he had asked his Advocate in the month of June, 2006 knowing very well that in the month of June the Courts generally remain closed. The plea set up by the appellant that the Courts would reopen on 6th July, 2006, is also false. In the year June 2006, the subordinate Courts were not closed for whole of the month and the regular work started on 1st July, 2006. The Court staff was available for whole of the month of June and fate of the case could have been easily known.

10. The appellant failed to produce even an iota of evidence that due to financial crisis he could not approach his Advocate as he was recovering from the losses suffered by him during the torrential rains in Mumbai some time back and, consequently, he lost track of this case till September, 2006. No proof was adduced to show to the Court that the appellant had suffered losses. No documentary proof was produced. The appellant could have furnished balance sheet of accounts, income tax record, etc. to prove that the grounds taken by him are true. Such like stories can be minted at any time.

11. For the purpose of condonation of delay, there must be some cause which can be termed as “sufficient cause”. Condonation of delay cannot be allowed only because the delay is unintentional and there are sufficient attending circumstances to bolster up the same. Crux of the problem is as to whether there is some plausible and reasonable explanation given by the appellant in his application for condonation of delay caused in preferring the appeal and that the impugned order is liable to be interfered with on the ground that it is perverse or patently erroneous. There should be some extenuating circumstances justifying the condonation of delay under Section 5 of the Limitation Act. There must be some compelling reasons for the Court to condone the delay.

12. In an authority Latika Industries v. Mr. G.S Arora, MANU/DE/8623/2006, it is held that:

“….For such type of people the Supreme Court of India in the judgment titled and S.P Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs., MANU/SC/0192/1994, opined as under—

The principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigations. The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court process a convenient lever to retain the illegal-gains indefinitely, we have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.”

13. In a recent authority reported in Writ Petition No. 2165 of 2006 titled as Sow. Kamalbai w/o Narasaiyya Shrimal and Narsaiyya s/o Sayanna Shrimal v. Ganpat S/o Vithalrao Gavare, MANU/MH/0865/2006 Equivalent Citation of 2007 (1) MhLJ 807, it is held:

“15. The expression “sufficient cause” cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of the Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ‘sufficient cause’ stated in the application and as such no interference in the impugned order is called for.”

14. Similar view was taken by the two Division Benches of this Court in Municipal Corporation of Delhi v. Vasudev Sharma, MANU/DE/0540/2005 and Union of India v. Kameshwar Dubey, MANU/DE/2954/2005. Another authority Ran Singh v. Union of India, MANU/DE/8526/2006, a Division Bench of this Court observed:

“4. Both CM Nos. 5369, 6683/2005 are barred by time. In the application filed by the petitioners under Section 5 of the Limitation Act, no reason whatsoever has been stated which could be termed as a sufficient cause for condoning the delay in filing these applications.”

15. Further, in Raghunath Singh v. Chander Krishan Mahajan, 1993 (2) Rent Law Reporter, it was held by the Punjab and Haryana High Court that no indulgence can be shown as the party had been negligent and inactive in pursuing the matter.

16. The appeal is without merits. The same is, therefore, dismissed.

Appeal dismissed.

Inder Industries v. Gemco Electrical Industries .

Structured Summary of the Opinion (J.M. Malik, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Inder Industries v. Gemco Electrical Industries .

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