M/S Mahalaxmi Sels Corporation Through Iitiis Propritor v. Satish Kumar

order dated

1.8.2008 has been deposited with Delhi Legal Services Authority or not and application is totally silent. There is no claim of the defendant that he also visited the Court on 3.11.2008 and, therefore, in my considered view the defendant has failed to disclose existence of any sufficient cause non appearance in the Court on 12.9.08, 27.9.08 and 4.10.2008. The application has been moved only to delay the proceedings and the execution proceedings."

¶15In view of the above findings of the trial court coupled with facts that appellant had not been persuing his case diligently and his conduct and approach was so callous, that it amounted to negligence. The only intention of appellant is to delay

the proceedings and to certain extent, he has achieved his objective, as he did not appear for his evidence nor did he produce even single witness, before he was proceeded ex-parte. Moreover, appellant did not deposit even the adjournment costs imposed by the trial court. Appellant was most negligent in defending his case and his non action and want of bonafide are clearly imputable. Thus, appellant has not been able to satisfactorily show any sufficient cause for non-appearance.

¶16Under these circumstances, I have no reason to disagree with the findings of the trial court, that no sufficient cause for non-appearance has been shown by the appellant in the court, on various dates. Application under Order IX Rule 13 of the Code has been filed only just to delay the execution proceedings. The present appeal is without any basis and same is hereby dismissed with costs of Rs.20,000/-. C.M. No. 13496/2009

¶17Dismissed.

¶18Appellant is directed to deposit the costs with trial court, within a period of one month from today, failing which trial court shall recover the same in accordance with law.

¶19Copy of this order be sent to the trial court.

October 8, 2009

V.B.GUPTA, J. AG

* HIGH COURT OF DELHI : NEW DELHI FAO No.294/2009 & CM No.13496/2009 % Judgment reserved on: 22nd September, 2009 Judgment delivered on: 8th October, 2009 M/s. Mahalaxmi Sales Corporation, Through its Proprietor, Mr. Ram Chander, 4082-B, Naya Bazar, Delhi-110 006 ….Appellant Through: Mr. Asit Tiwari, Advocate. Versus Shri Satish Kumar, Proprietor, M/s. Sat Narain Naveeen Kumar, 4080-81, First Floor, Naya Bazar, Delhi-110 006. ….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. This appeal has been filed by the appellant against order dated 16th May 2009 vide which Additional District Judge, Delhi dismissed appellant"s under Order IX Rule 13 read with Section 151 of Code of Civil Procedure (for short as "Code"). 2. Brief facts are that, respondent filed a suit for recovery against appellant under Order XXXVII of the Code, in which leave to defend was granted. Respondent closed his evidence on 17th April 2008. On 23rd May 2008, matter was fixed for appellant"s evidence, but no witness of appellant was present and adjournment was prayed. Accordingly, matter was adjourned to 1st August, 2008. On that day again, no witness of appellant was present nor any affidavit was filed. Adjournment was prayed on the ground that appellant is not well, the same was granted subject to cost of Rs.500/- to be deposited with Delhi Legal Services Authority within 7 days. 3. On 12th September, 2008 none appeared for appellant at first call. Again on second call, none appeared on behalf of appellant. On third call at 1.25 PM, when case was taken up, nobody was present on behalf of the appellant nor any witness was present. The appellant was thus proceeded ex-parte and matter was adjourned to 27th September, 2008 for final arguments. 4. On 27th September, 2008 again none appeared for appellant. Final arguments were heard and matter was adjourned to 4th October, 2008 for Orders. On that date, suit of the respondent was decreed. 5. It is contended by learned counsel for appellant that non-appearance of the appellant on 12th September, 2008 was due to inadvertent error/mistake of counsel, which was beyond the control of the appellant. On 1st August, 2008 due to inadvertence, counsel for appellant erroneously noted next date of hearing in his case diary as 3rd November, 2008, instead of 12th September, 2008 and accordingly informed appellant about the next date. As per case diary, counsel for appellant, visited the Court on 3rd November, 2008, but the case was not listed on that date and he found that the same has been decreed on 4th October, 2008. Thus, there was a bonafide mistake on the part of the counsel and trial court wrongly dismissed the application of the appellant for setting aside the ex-parte decree. 6. Application under Order IX Rule 13 of the Code, filed by appellant before trial court, is supported by affidavit of appellant as well as his counsel. Appellant in his affidavit has nowhere stated as to why he did not appear in the Court on 12th September, 2008, when the matter was fixed for his evidence. As already stated above, many dates were given for appellant"s evidence, but not on a single date, appellant appeared for his evidence nor did he produce any witness. 7. Though counsel for appellant in his affidavit, filed along with application has stated that on 1st August, 2008, inadvertently and due to bonafide mistake, wrong date of hearing was noted as 3rd November, 2008, instead of 12th September, 2008 in his case diary. However, appellant in his entire affidavit, has nowhere given any explanation for his non-appearance in the Court on 12th September, 2008, nor he has stated at all that he had also noted wrong date. 8. Order IX Rule 13 CPC of the Code, which is relevant, read as under: "R. 13. Setting aside decree ex parte agai