Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO 153/2022 & CM. APPL. No.25757/2022
Reserved on : 27.09.2022
Date of Decision : 14.10.2022
IN THE MATTER OF :
DEPUTY COMMISSIONER OF POLICE & ANR ..... Appellants
Through: Mr.Anupam Srivastava, ASC for GNCTD
with Ms.Sarita Pandey, Advocate alongwith SI Vikas
Kumar, P.S. Gandhi Nagar
Versus
SMT. NEELAM RANI & ORS. ..... Respondents
Through: Mr.Kirti Uppal, Sr.Advocate with
Mr.Randeep Singh, Ms.Ujala Vishnoi, Ms.Riya Gulati
and Mr.Chandan Singh, Advocates for respondents
No.1 to 3
Mr.Arun Panwar and Ms.Mahak Rankawat, Advocates
for respondent No.4
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
.
MANOJ KUMAR OHRI, J
1. By way of the present appeal filed under Section 104 read with Order
XLIII Rule 1(d) CPC, the appellants/defendants have assailed the order dated
06.05.2022 passed by the learned ADJ-02, Shahdara, Karkardooma Courts,
Delhi in Misc DJ No. 731/2021, whereby application filed on behalf of the
appellants under Order 9 Rule 13 CPC and Section 5 of Limitation Act, 1963
was dismissed.
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2. Before proceeding to deal with the contentions, the facts in a nutshell are
that respondents No.1 to 3/plaintiffs, while claiming themselves to be co-owners
and shareholders of property bearing No. 148, Gandhi Nagar, Delhi part of
Khasra No.690/605/326/62/7/1/8/14/6/7/5/1 in the area of village Seelampur, in
the abadi of Gandhi Nagar, Delhi , had filed a suit bearing CS No. 626/2018
against the defendants for possession, mesne profits and permanent injunction.
The plaintiffs claimed that they had purchased their respective shares by virtue
of separate sale deeds and that the Suit Property being adjacent to Gandhi Nagar
Police Station had been illegally trespassed in the year 2008 by police officials,
who were using it for parking junk/unused and confiscated vehicles.
3. Records reveal that the appellants were served with the summons of the
Suit. One SI Deshpal had appeared on 17.01.2019. As no written statement came
to be filed, the appellants were proceeded ex-parte on 20.08.2019. The plaintiffs
led evidence and after conclusion of the trial, an ex-parte judgment came to be
passed on 16.03.2021. On an execution petition being filed, the appellants
received summons on 06.09.2021 whereafter they preferred an application under
Order 9 Rule 13 CPC read with Section 5 of Limitation Act on 30.11.2021,
resulting in passing of the impugned order.
4. Mr. Anupam Srivastava, learned ASC for the appellants, assailed the
impugned order by contending that the Trial Court failed to appreciate that the
appellants had shown sufficient cause for not appearing in the Suit as well as for
condonation of delay in filing the application under Order 9 Rule 13 CPC.
Insofar as non-appearance in the Suit is concerned, it was contended that
although SI Deshpal appeared on 17.01.2019, the Presiding Officer was on leave
and as such, the officer could not understand the proceedings, resulting in failure
to communicate the same to the senior officers.
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It was also submitted that having received the summons, the appellants
acted diligently in issuing Brief Transmission Form (BTF) on 07.08.2019 in
favour of the Government counsel appointed for appearing in the suit
proceedings. The Government counsel, however, could not appear as he did not
receive the BTF or any other instructions. It is urged that in this backdrop, the
appellants were proceeded ex-parte resulting in passing of the impugned
order/judgment.
Learned counsel for the appellants also argued that the appellants acquired
knowledge of the passing of the impugned judgment only on 06.09.2021, when
summons in the execution petition were received by them. Lastly, it was
submitted that the expression sufficient cause in Order 9 Rule 13 CPC is to be
construed liberally, as no negligence is imputable to the appellants and the
appellants were rather vigilant enough to not only send the concerned SI, but
also to appoint a counsel by issuing a BTF prior to even passing of the order,
whereby the appellants were proceeded ex-parte.
5. Insofar as the dismissal of the application under Section 5 of the
Limitation Act is concerned, learned ASC referred to the orders passed by the
Supreme Court in Suo Motu W.P. (C) No. 3/2020 to submit that the application
under Order 9 Rule 13 CPC was filed within limitation.
6. Mr. Kirti Uppal, learned Senior Counsel appearing for respondents No.1
to 3, on the other hand, contended that the appellants had been callous in their
conduct, inasmuch as none appeared on their behalf in the Suit despite service of
summons. He further contended that the explanation offered that SI Deshpal
could not understand the proceedings and that the Government counsel
appointed did not receive BTF/instructions, does not sufficiently explain as to
why the appellants failed to appear on the relevant dates.
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Learned Senior Counsel submitted that while the captioned suit was filed
with respect to one portion of the plot, the owners of the other three portions
have preferred another suit, which came to be decreed on 11.02.2020. He also
argued that the appellants would not gain any advantage in contesting the
present suit as the decree in the other suit has remained unchallenged.
Alternatively, it was contended that the appellants cannot be relegated to
the stage prior to the passing of the order dated 20.08.2019, whereby they were
proceeded ex-parte . Learned Senior Counsel also submitted that the appellants
in the present case have not challenged the ex-parte judgment on merits till date.
7. I have heard learned counsels for the parties and have also gone through
the case records.
8. Although a contention has been raised on behalf of respondent Nos. 1 to 3
to the effect that the ex-parte judgment remains unchallenged on merits, the law
in this regard is well settled. A defendant who has suffered an ex-parte decree
can either file a regular appeal from the decree challenging the same on merits,
or alternatively, he can file an application under Order 9 Rule 13 CPC to seek
setting aside of the decree on the ground that (i) the summons were not duly
served or; (ii) the person who was served was prevented by sufficient cause
from appearing in the suit when the suit was called for hearing.
The appellants have premised their case on the alternative, by submitting
that after being summoned, they were prevented by s ufficient cause from
appearing in the Suit when it came up for hearing. While underlining the
availability of remedies to defendants such as those in the present case, the
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Supreme Court in Bhivchandra Shankar More v. Balu Gangaram More and
Others reported as (2019) 6 SCC 387 has held as under:-
“ 11 . It is to be pointed out that the scope of Order 9 Rule 13
CPC and Section 96(2) CPC are entirely different. In an
application filed under Order 9 Rule 13 CPC, the Court has to
see whether the summons were duly served or not or whether the
defendant was prevented by any “sufficient cause” from
appearing when the suit was called for hearing. If the Court is
satisfied that the defendant was not duly served or that he was
prevented for “sufficient cause”, the court may set aside the ex
parte decree and restore the suit to its original position. In terms
of Section 96(2) CPC, the appeal lies from an original decree
passed ex parte. In the regular appeal filed under Section 96(2)
CPC, the appellate court has wide jurisdiction to go into the
merits of the decree. The scope of enquiry under two provisions
is entirely different. Merely because the defendant pursued the
remedy under Order 9 Rule 13 CPC, it does not prohibit the
defendant from filing the appeal if his application under Order 9
Rule 13 CPC is dismissed.”
9. The expression ‘was prevented by any sufficient cause from appearing’
as mentioned in Order 9 Rule 13 CPC has to be construed in the facts and
circumstances of each case. Indeed, it has to be construed liberally, especially if
the explanation offered is justifiable. In this regard, the Supreme Court in
Bhivchandra Shankar More (Supra) has opined that the term sufficient cause
should be given liberal construction so as to advance sustainable justice when
there is no inaction, no negligence nor want of bonafide on the part of the
appellant.
10. To similar extent are the observations in G.P. Srivastava v. R.K. Raizada
and Others reported as (2000) 3 SCC 54, where the Supreme Court while
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considering the scope of sufficient cause under Order 9 Rule 13 CPC observed
thus:-
“ 7. Under Order 9 Rule 13 CPC an ex parte decree passed
against a defendant can be set aside upon satisfaction of the
Court that either the summons were not duly served upon the
defendant or he was prevented by any “sufficient cause” from
appearing when the suit was called on for hearing. Unless
“sufficient cause” is shown for non-appearance of the defendant
in the case on the date of hearing, the court has no power to set
aside an ex parte decree. The words "was prevented by any
sufficient cause from appearing" must be liberally construed to
enable the court to do complete justice between the parties
particularly when no negligence or inaction is imputable to the
erring party. Sufficient cause for the purpose of Order 9 Rule 13
has to be construed as an elastic expression for which no hard
and fast guidelines can be prescribed. The courts have a wide
discretion in deciding the sufficient cause keeping in view the
peculiar facts and circumstances of each case. The “sufficient
cause” for non-appearance refers to the date on which the
absence was made a ground for proceeding ex parte and cannot
be stretched to rely upon other circumstances anterior in time. If
“sufficient cause” is made out for non-appearance of the
defendant on the date fixed for hearing when ex parte
proceedings were initiated against him, he cannot be penalised
for his previous negligence which had been overlooked and
thereby condoned earlier. In a case where the defendant
approaches the court immediately and within the statutory time
specified, the discretion is normally exercised in his favour,
provided the absence was not mala fide or intentional. For the
absence of a party in the case the other side can be compensated
by adequate costs and the lis decided on merits.”
11. Again, in Secretary, Department of Horticulture, Chandigarh and Another
v. Raghu Raj reported as (2008) 13 SCC 395, it was held by the Supreme Court
that a party should normally not suffer on account of default or non-appearance
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on behalf of its counsel. Relevant extract from the decision is reproduced
hereunder:-
“ 28. From the case law referred to above, it is clear that this
Court has always insisted on advocates to appear and argue the
case as and when it is called out for hearing. Failure to do so
would be unfair to the client and discourteous to the court and
must be severely discountenanced. At the same time, the Court
has also emphasized doing justice to the cause wherein it is
appropriate that both the parties are present before the court and
they are heard. It has been noted by the Court that once a party
engages a counsel, he thinks that his advocate will appear when
the case will be taken up for hearing and the court calls upon the
counsel to make submissions. It is keeping in view these
principles that the Court does not proceed to hear the matter in
absence of the counsel.”
12. Recently, this Court, in Hira Sweets & Confectionary Pvt. Ltd. and
Others v. Hira Confectioners reported as 2021 SCC OnLine Del 1823 also
reiterated the above legal position and held:-
“ 11. Insofar as the scope of an application under Order IX Rule 13
CPC is concerned, the Court has to see whether the summons in the
suit were duly served or not and/or whether the defendant was
prevented by any “sufficient cause” from appearing when the suit
was called for hearing. In the present case, the defendant was duly
served with the summons in the suit and had appeared.
12. “Sufficient Cause” is an elastic expression and no hard and fast
guidelines are prescribed. The Court, in its discretion, has to
consider the “sufficient cause” in the facts and circumstances of
every individual case. Although in interpreting the words “sufficient
cause”, the Court has wide discretion but the same has to be
exercised in the particular facts of the case.
xxx
14. In Sudarshan Sareen (Supra), a Division Bench of this Court
while holding that the appellant therein, was wilfully negligent in not
appearing and thus rejecting his prayer for setting aside of an ex-
parte decree, relied on the following passage in the case of Parimal
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v. Veena reported as (2011) 3 SCC 545, where the expression
“sufficient cause” was interpreted as under:
“13. “Sufficient cause” is an expression which has been used in
a large number of statutes. The meaning of the word “sufficient”
is “adequate” or “enough”, inasmuch as may be necessary to
answer the purpose intended. Therefore, word “sufficient”
embraces no more than that which provides a platitude which
when the act done suffices to accomplish the purpose intended in
the facts and circumstances existing in a case and duly examined
from the viewpoint of a reasonable standard of a cautious man.
In this context, “sufficient cause” means that the party had not
acted in a negligent manner or there was a want of bona fide on
its part in view of the facts and circumstances of a case or the
party cannot be alleged to have been “not acting diligently” or
“remaining inactive”. However, the facts and circumstances of
each case must afford sufficient ground to enable the court
concerned to exercise discretion for the reason that whenever the
court exercises discretion, it has to be exercised judiciously.
(Vide Ramial v. Rewa Coalfields Ltd. [AIR 1962 SC 361],
Lonand Grampanchayat v. Ramgiri Gosavi [AIR 1968 SC 222],
Surinder Singh Sibia v. Vijay Kumar Sood [(1992) 1 SCC 70]
and Oriental Aroma Chemical Industries Ltd. v. Gujarat
Industrial Development Corpn. [(2010) 5 SCC 459].)
xxx xxx xxx
15. While deciding whether there is sufficient cause or not, the
court must bear in mind the object of doing substantial justice to
all the parties concerned and that the technicalities of the law
should not prevent the court from doing substantial justice and
doing away the illegality perpetuated on the basis of the
judgment impugned before it. (Vide State of Bihar v. Kameshwar
Prasad Singh [(2000) 9 SCC 94], Madanlal v. Shyamlal [(2002)
1 SCC 535], Davinder Pal Sehgal v. Partap Steel Rolling Mills
(P) Ltd. [(2002) 3 SCC 156], Ram Nath Sao v. Gobardhan Sao
[(2002) 3 SCC 195], Kaushalya Devi v. Prem Chand [(2005) 10
SCC 127], Srei International Finance Ltd.v. Fairgrowth
Financial Services Ltd. [(2005) 13 SCC 95] and Reena Sadh v.
Aniana Enterprises [(2008) 12 SCC 589].)
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16. In order to determine the application under Order 9 Rule 13
CPC, the test that has to be applied is whether the defendant
honestly and sincerely intended to remain present when the suit
was called on for hearing and did his best to do so. Sufficient
cause is thus the cause for which the defendant could not be
blamed for his absence. Therefore, the applicant must approach
the court with a reasonable defence. Sufficient cause is a
question of fact and the court has to exercise its discretion in the
varied and special circumstances in the case at hand. There
cannot be a straitjacket formula of universal application.”
15. Recently, the Supreme Court in A. Murugesan v. Jamuna Rani
reported as (2019) 20 SCC 803 affirmed its earlier view in G.P.
Srivastava v. R.K. Raizada reported as (2000) 3 SCC 54, which is
reproduced as under:
“7. Under Order 9 Rule 13 CPC an ex-parte decree passed
against a defendant can be set aside upon satisfaction of the
Court that either the summons were not duly served upon the
defendant or he was prevented by any “sufficient cause” from
appearing when the suit was called on for hearing. Unless
“sufficient cause” is shown for non-appearance of the defendant
in the case on the date of hearing, the court has no power to set
aside an ex-parte decree. The words “was prevented by any
sufficient cause from appearing” must be liberally construed to
enable the court to do complete justice between the parties
particularly when no negligence or inaction is imputable to the
erring party. Sufficient cause for the purpose of Order 9 Rule 13
has to be construed as an elastic expression for which no hard
and-fast guidelines can be prescribed. The courts have a wide
discretion in deciding the sufficient cause keeping in view the
peculiar facts and circumstances of each case. The “sufficient
cause” for non-appearance refers to the date on which the
absence was made a ground for proceeding ex-parte and cannot
be stretched to rely upon other circumstances anterior in time. If
“sufficient cause” is made out for non-appearance of the
defendant on the date fixed for hearing when ex pate proceedings
were initiated against him, he cannot be penalised for his
previous negligence which had been overlooked and thereby
condoned earlier. In a case where the defendant approaches the
court immediately and within the statutory time specified, the
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discretion is normally exercised in his favour, provided the
absence was not mala fide or intentional. For the absence of a
party in the case the other side can be compensated by adequate
costs and the lis decided on merits.”
13. In the present case, it is apparent that the appellants put an appearance
through SI Deshpal on 17.01.2019, however, the Presiding Officer was on leave
that day. The appellants did not appear on next three dates, however, they had
taken sufficient steps of appointing Government counsel to represent them in the
said proceedings. The counsel engaged could not appear for want of BTF and
necessary instructions, resulting eventually in passing of the ex-parte
judgment/decree.
14. Keeping in view the facts and circumstances of the case and the position
of law as discussed hereinabove, the present appeal is allowed and the matter is
remanded back to the concerned Court for proceeding with the Suit in
accordance with law. Miscellaneous application is disposed of as infructuous.
15. A copy of this judgment be communicated to the concerned Court for
information.
(MANOJ KUMAR OHRI)
JUDGE
OCTOBER 14, 2022
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