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High Court Of Delhi
SANGAM ELECTRONICS - Appellant
Versus
HYDERABAD ALLWYN METAL WORKS LIMITED - Respondent
REGULAR FIRST APPEAL 28 of 1982
Decided On : 05/25/1984
It may be mentioned that there are a large number of reported cases in which it has been held that non-appearance of a party on account of counsel being busy in another Court, is a sufficient ground for setting aside the ex-parte decree or a dismissal in default. However, those are of all cases involving the subordinate Courts where the procedure is quite different. It is customary in such Courts for learned counsel to be busy in more than one Court, and accommodation by the Courts is a matter of routine. In such cases if the Court does not wait for the counsel, or does not give them time, virtually all the cases would be decided ex-parte. This is on account of the fact that in such Courts the cases are to be called at various times of the day and learned counsel cannot always be free at the requisite time.
2. Civil Procedure Code : Order 9 Rule 13 : Whether the principle that non-appearance of a party on account of counsel being busy in another Court is sufficient ground for setting aside the exparte decree can be applied to the trial on the original side of the High Court ? No, Appeal dismissed.
We are firmly of the view that this principle cannot be applied on the trials on the Original Side, where the whole system of trial has been designed to ensure a day-to-day trial on a fixed date or dates. The numerous hearing which take place before the Deputy Registrar to finalise the case for trial are meant to ensurer that the witnesses are bound down to appear on a given date. In the present case the back ground appears to be that the plaintiff got his case ready for trial but the defendant did not take steps to have the witnesses bound and hence, when the case came for trial not only was the counsel absent but the defendant was also absent.
The decision not to restore the suit was taken by a Judge sitting on the Original Side of this Court and it is not to be disturbed lightly, we would accordingly dismiss the appeal.
3. Civil Procedure Code : Proviso to Order 17 Rule 1 : Applicability to such cases on the original side of High Court where the counsel is busy in another court.
The intention of the proviso was that no suit which had begun should be adjourned even if the counsel was busy in another Court. In this particular case, even a request for adjournment was not made, so the learned Single Judge had to proceed with the trial of the case.
We realise that the result is harsh, but the, object of the Original Side Rules fixing the trial dates well in time is to ensure that proper arrangements are made for a continuous hearing of the suit. Similarly, the amendment to Order 17, Rule 1 is intended to cover the case of a counsel being busy in another Court. It is necessary in such cases that an alternative arrangement should be made to ensure a continuous hearing of the suit.
( 1 ) THERE are two appeals before the Court. R. F. A. (OS.) 28/82 and FAO (OS) 88/82. The Regular First Appeal was filed within the period of limitation and was directed against the exparte judgment recorded by the learned Single Judge on 5th March 1982 decreeing the suit for Rs. 1,41,665. 77 with interest, cost etc.
( 2 ) AFTER this the defendant-appellant filed an application under Order 9 Rule 13 and Section 151 of the Code of Civil Procedure for setting aside the exparte decree on 5th March 1982 itself. It was supported by the affidavit of the learned counsel for the defendant Mr, H. S. Dhir. In that application it was claimed that the counsel for the appellant/defendant could not appear because he was appearing before a Division Bench where arguments concluded at 12. 10 p. m. and when he reached the Court of the learned Single Judge he found that the suit had already been decreed exparte. This application was dismissed by an order dated 16th April 1982 In the order it was held that the defendant had failed to show sufficient cause for nonappearance on 4th and 5th March, 1982 and hence the application was difmissed.
( 3 ) WHEN the Regular First Appeal came before the Admission Bench it was noted that only one appeal had been filed although the appellant also wanted to challenge the order refusing to set aside the exparte decree.
( 4 ) THE appellant then filed FAO (OS) 88 of 1982 alongwith an application for stay as well as application for condoning delay under Section 5 of the Limitation Act. If we consider this appeal we would have to decide the question whether the delay should be condoned. The order was passed on 16th April 1982 and this appeal was filed on 17th July 1982. There was only three copying days because the application for copy was presented on 13th July 1982 and the copy was ready on 16th July 1982. So prima facie this appeal would be barred by time and there is hardly any reason for condoning the delay. Learned counsel more or less conceded this position but made a submission at the hearing to the effect that the Regular First Appeal might be treated as an appeal against the order refusing to set aside the ex-parte decree. If we allow this to be done then RFA (OS) 28 of 1982 which is within time both as an appeal against the judgment and decree as well as against the order refusing to set aside the ex-parte decree could be a First Appeal against Order, the order refusing to set aside the ex-parte decree.
( 5 ) ON a consideration of the questions involved in the present case we are of the view that we should accede to the learned counsel s request and there are many good reasons for this. Firstly, the judgment dated 5th March, 1982 is based on an ex-parte trial. The suit was for recovery of the price of 46 allwyn refrigerators which had been supplied to the defendant. The suit was defended and a counter-claim was raised. The ex-parte trial and decision was based only on the plaintiff s evidence to the effect that the price of the refrigerators had been paid to the extent of Rs. 25,000. 00 only and an amount of Rs. 1,66,665. 77 was still due towards the balance price together with interest at 18% per annum. There was no defence offered by the defendants and no appearance for them. No evidence was led and no arguments addressed and consequently the suit was decree ex-parte. The only defence to the decree was the tact that the defendants were unable to appear at the trial for reasons which will become apparent later. The defendant then filed the application under Order 9 Rule 13 of the Code which was rejected. If we consider the appeal as being directed against the ex-parte decree, there can hardly be anything said for the defendant. On the other hand, if we treat that the appeal is being directed against the order refusing to set aside the exparte decree then only can the contentions of the appellant become relevant. Virtually the only case of the appellant is for reversing the order refu
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