Godrej Sara Lee Ltd v. R.N.Chaddha & Co & Ors

MOOL CHAND GARG, J NOVEMBER 23, 2010

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* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO No.253/2007 % Reserved On: 18.11.2010 Decided On:23.11.2010 M/S GODREJ HI CARE LTD. …. Appellant Through: Mr.Rajiv Tyagi and Mr.Ram Manohar Singh, Advocates Versus M/S R.N. CHADHA & CO. & ANR. …. Respondents Through: Mr.Amit Gupta, Advocate for the respondent. Mr.Nawal Kishore Jha, Advocate for GNCTD CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? No 2. To be referred to the reporter or not? No 3. Whether the judgment should be reported in the Digest? No : MOOL CHAND GARG, J. 1. This appeal arises out of an order dated 09.04.2007 passed by the Additional District Judge in Suit No.295/2003, whereby the learned Judge has dismissed the application filed by the appellant for condoning the delay in filing an application for restoration of the suit which was dismissed in default on 14.12.2005. 2. The learned Additional District Judge after examining the matter dismissed the application for condonation of delay in filing an application for restoration of the suit on the following grounds:- "…….Firstly, on 14.12.2005 none appeared on behalf of plaintiff despite repeated calls and the suit of the plaintiff was dismissed for non-prosecution at 2:15 pm. On that date the case was fixed for plaintiff's evidence. It is pertinent to note that no affidavit in plaintiff evidence was filed nor any witness was called/present. Secondly, subsequently an application u/o 9 rule 9 CPC was filed for restoration of the suit. The same was taken up on 03.02.2006. Since none was present on behalf of plaintiff/applicant the application u/o 9 rule 9 CPC was dismissed. Thirdly, thereafter the present application has been filed almost more than one year after dismissal of application of plaintiff u/o 9 Rule 9 for non appearance stating that the case was handled by a firm of lawyers who could not take care of the case and due to their negligence the suit as well as application was dismissed. It is stated that the negligence of a counsel is a ground for condonation of delay and accordingly cite AIR 1970 SC 1953, (1979) 4 SCC 365 and (2002) 4 SCC 458. Usually courts are very liberal in condoning the delay in fling the applications. The plaintiff/applicant should give the facts and the reasons for condonation. I do not think that the applicant has given the reasons for the delay. Fourthly, since middle of 2005 the cause lists are available on the internet and anyone can see his case on internet by just clicking of mouse. Plaintiff company that have so many paraphernalia could not say that it was ignorant of the date. Any time the company can check with the internet the status of their case. For knowing date of hearing there is no need to depend on advice of counsel. Even short and final order are available on internet which can be checked by plaintiff/applicant. It is just not a mistake of the counsel but rather a negligence on the part of the plaintiff company which could not be condoned. Accordingly there is no merit in the application of plaintiff/applicant u/s 151 CPC and the same is dismissed." 3. The learned counsel appearing for the appellant assailing the aforesaid order, has submitted that the appellant/plaintiff who filed the suit for recovery of ` 6,01,627.80 against the respondents on account of supply of various goods had engaged a firm of lawyers to attend their case and on account of that firm of lawyers the suit was dismissed in default probably on account of lawyer's strike. It is submitted that the client should not suffer because of the negligence of his lawyer and therefore, the Additional District Judge ought to have condoned the delay and allowed the application under Order IX Rule 9 & 4 r/w Section 151 CPC for restoration of the suit. 4. To appreciate the submission of learned counsel for the appellant and the conduct of the appellant it would be appropriate to take note of the sequence of events which transpired in this case: