Harinder Singh v. Kuldeep Singh & Anr

V.B.GUPTA, J. ab

* HIGH COURT OF DELHI : NEW DELHI CM (M) No. 1064/2010 & CM No. 14828/2010 (stay) % Judgment reserved on: 18th August, 2010 Judgment delivered on: 25th August, 2010 Sh. Harinder Singh, S/o Shri Kuldeep Singh R/o C-20, Fateh Nagar, Tilak Nagar, New Delhi ….Petitioner. Through: Mr. Anand Prakash & Ms. Babita Seth, Advocates. Versus 1. Sh. Kuldeep Singh S/o Late Sh. Karam Singh R/o House No. 9, Road No. 13, Punjabi Bagh Extn. New Delhi- 110026 2. Vijaya Bank (through its Manager) Branch Office Kamla Nagar, Delhi. ….Respondents Through: None Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. By way of present petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 12th May, 2010 passed by Additional District Judge Delhi, vide which application of petitioner filed under Order 9 Rule 7 read with section 151 of Code of Civil Procedure (for short as "Code") was dismissed with costs of Rs.4,000/-. 2. Respondent herein, filed a suit for recovery of Rs.3,11,818/- along with interest against the petitioner and respondent no.2. As per list of dates, counsel for petitioner who had been appearing and contesting the case on behalf of petitioner, did not appear in the matter on 21st August, 2007 and as such case was adjourned to 27th September, 2007, on which date again petitioner counsel did not appear. On the adjourned date, i.e. 30th October, 2007, court was on leave and matter was adjourned to 3rd November, 2007. On 3rd November 2007, the matter was adjourned for 7th January, 2008 and again counsel for petitioner, did not appear on that day and as such, petitioner was proceeded ex parte. 3. It is contended by learned counsel that petitioner came to know about ex parte order dated 7th January, 2008, only on 30th January, 2010, when new counsel engaged by petitioner, inspected the case file. Earlier counsel had assured the petitioner that he will appear and take care of the case and call the petitioner as and when required. Thus, petitioner was under bonafide impression and belief that counsel would inform him, as and when required. 4. Other contention is that, the trial court did not adjudicate the application filed under Section 5 of the Limitation Act and petitioner cannot be penalized for non-appearance of his counsel. 5. Present petition has been filed under Article 227 of the Constitution of India. It is well settled that jurisdiction of this Court under this Article is limited. 6. In Waryam Singh and another vs. Amarnath and another, AIR 1954, SC 215, the court observed; "This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in – "Dalmia Jain Airways Ltd. V. Sukumar Mukherjee", AIR 1951 Cal 193 (SB) (B), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors." 7. In light of principles laid down in the above decision, it is to be seen as to whether present petition under Article 227 of the Constitution of India against impugned order is maintainable or not. 8. Order 9 Rule 7 of the Code read as under; "7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance- Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non- appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance." 9. As per above provision, petitioner has to show "good cause for his previous non-appearance." Recovery suit against petitioner was filed in the year 2007. As per petitioner"s own case, neither he nor his couns