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Krishna Continental Ltd & Others v/s Balkrishan Sharma

    FAO Nos.129-130 of 2005 & CM No.6836 of 2005

    Decided On, 08 August 2007

    At, High Court of Delhi


    For the Appellants: K.K. Rohatgi, Advocate. For the Respondent: Sikander Arora, Advocate.

Judgment Text

J.M. Malik, J.

1. Vide order dated 4th April, 2005, the trial court dismissed the applications moved by the appellants under Order 9 Rule 13 CPC and under Section 5 of the Limitation Act. Aggrieved by that order, the present appeal has been preferred. The appellants appeared before the trial court and submitted their written statement. Thereafter, the appellants were proceeded against ex parte on 2nd August, 2004 The ex parte judgment was delivered on 19th August, 2004 The appellants moved an application under Order 9 Rule 13 CPC before the trial court. A copy of the said application was filed before me as Annexure 9 at pages 67 to 69. Para Nos. 6 and 7 of that application are reproduced as under:

"6. That the Applicants/Defendants were under bona fide impression that the case is being pursued by the Counsel in the proper manner and whenever there will be any requirement of the presence of the Authorized Representative, the Counsel will inform the Applicants/Defendants. Time to time official of the Applicants/Defendants were contacting Mr.Saxena for the development of the case and getting assurance that he was pursuing the case properly and in case of any requirement he will contact the Applicants/Defendants. Mr.Saxena never informed the Applicants/Defendants that the case is fixed for admission/denial and Authorized Representative's presence is required for the same. The Counsel also, in a very unprofessional manner, without informing the Applicants/Defendants, did not appear in the case and the ex-parte order was passed. The Applicants/Defendants is separately filing an application in this regard against Mr.Saxena for the professional misconduct before the appropriate Forum.

7. That non-appearance of the Applicants/Defendants was not intentional or deliberate, it was only because of lack of the knowledge of the date of hearing, as the counsel did not inform the same. The applicants/Defendants has a very good case in their favour and only because of negligence of the Counsel after filing of the Written Statement and Documents, the Applicants/Defendants were proceeded ex-parte."

2. The above-said portion given in italics and underlined by me does not form part of the original application moved by the appellants before the trial court. This sentence is conspicuously missing from the trial court record. The learned counsel for the respondent vehemently argued that this new plea has been raised unauthorisedly, illegally and without the permission of the court in order to procure a favourable order. On the other hand, counsel for the appellants submitted that, although, his signatures appear under his endorsement "true copy", yet, whatever was given to him by the appellants, he had submitted the same before the trial court.

3. The appellants also filed an application under Section 5 of the Limitation Act. This is a one page application where no attempt was made to explain the delay. On the contrary, in the prayer clause, it was mentioned that the delay, if any, be condoned in filing the application under Order 9 Rule 13 CPC.

4. I have heard the learned counsel for the parties. The learned counsel for the appellants vehemently argued that the appellants had already deposited the entire decretal amount and that they should be given an opportunity of being heard. He also pointed out that the appellants had already made the payment to the respondent and for the second time, appellants had to deposit the decretal amount with this Court. He pointed out that under these circumstances ex parte decree should be set aside and an opportunity of being heard be granted in favour of the appellants. In order to embolden his case, counsel for the appellants has cited authorities reported in Collector, Land Acquisition, Anantnag v. Katiji, [AIR 1987 SC 1353], N.Balakrishnan v. M. Krishnamurthy, [AIR 1998 SC 3222], State of Bihar and Others v. Kameshwar Prasad Singh and Another with State of Bihar and Others v. Brij Bihari Prasad Singh, [JT 2000 (5) SC 389], Bharat Singh and Others v. Narender Kumar and Others [(2004) 13 SCC 691], Gobind Parshad Jagdish Parshad v. Hari Shankar and Others, [AIR 2001 Delhi 121], Dharshan Lal Dhuper v. Smt. Motia Rani and Others [110 (2004) Delhi Law Times 516], Delhi Development Authority v. Bhasin Associates, [114 (2004) Delhi Law Times 484 (D.B.)] and Sultan Singh (Since deceased now represented by Mr.Jitender Kumar Jain) v. Mrs. Raj Rani and Another, [93(2001)Delhi Law times 268].

5. For the following reasons, I find no force in these arguments. It is clear that the appellants have no qualms in playing fast and loose even with the High Court. They have not come to the court with clean hands. They tried to take the court for a ride knowing fully well that they have not set up any sufficient cause for condonation of delay. They tried to include a fresh ground after filing the appeal in this court. On that account alone, the appeal is liable to be dismissed. The appellants as well as his counsel have committed those acts which border the Contempt of Courts Act. It was the bounden duty of the Advocate to find out whether he was signing the true copies or not. He cannot wriggle out of the responsibility by merely stating that he had filed those documents which were furnished to him by the appellants. Copy of this order be sent to the Bar Council of India for information and action.

6. For such type of people the Supreme Court of India in the judgment titled as S.P.Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. and Ors. reported in AIR 1994 SC 853, 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 litigants. 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.

7. Counsel for the appellants admitted that no action was taken against the advocate. No reason or sufficient cause finds place in the above-said applications. Mere non-appearance of the advocate without any rhyme or reason does not constitute sufficient cause in terms of Section 5 of the Limitation Act.

8. 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 the 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.

9. In a recent case reported in Sow. Kamalbai w/o Narasaiyya Shrimal and Narsaiyya s/o Sayanna Shrimal v. Ganpat S/o Vithalrao Gavare, 2007(1) MhLj 807, it was held,

"15. The expression `sufficient cause' can not 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."

Similar view was taken by the two Division Benches of this Court in Municipal Corporation of Delhi v. Vasudev Sharma,2005(118) DLT 577 and LPA 2668/2005, decided on 12.12.2005 titled as Union of India (UOI) v. Kameshwar Dubey.

10. Further, in Raghunath Singh and Others v. Chander Krishan Mahajan and Another [1993(2) Rent Law Reporter] it was hel

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d 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. 11. In Mata Din v. A.Narayan, [AIR 1970 Supreme Court 1953], it was held, "The law is settled that mistake of Counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of Counsel by itself is always bona fide or was merely devise to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way." 12. In view of the discussion above, I come to the conclusion that the appeal is without merit. FAO Nos. 129-130/2005 are, accordingly, dismissed with costs. The advocate fee's is fixed at Rs. 10,000/-.CM No. 6836/2005 also stands dismissed. The trial court record along with a copy of this judgment be sent back forthwith. Appeal dismissed.