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2017 Supreme(Del) 3832
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
M/S Vidhi AgenciesThrough Its Proprietor Rakesh Kumar Gagneja - Appellant
Versus
M/S Karnataka Soaps & Detergents Ltd. - Respondent
FAO No. 375 of 2017
Decided On : 18-09-2017
For the Appellant :Mr. G.S. Gangwar, Advocate.
Headnote:
CPC - Order XLIII(1)(d) - [CIVIL PROCEDURE CODE, 1908 - Order IX Rule 13] - The court dismissed the appellant/defendant's appeal against the ex-parte judgment and decree dated 21.1.2015, holding the appellant/defendant responsible for negligence in prosecuting the case and rejecting the argument that the appellant/defendant's counsel was at fault for not informing about the case status. The court emphasized the duty of the litigant to remain vigilant and take responsibility for the case, and highlighted the availability of case status information on the District Judiciary website.
Fact of the Case:
The appellant/defendant filed an appeal against the trial court's order dismissing the application to set aside the ex-parte judgment and decree dated 21.1.2015, claiming that the appellant/defendant's counsel did not inform about the case status.
Finding of the Court:
The court found the appellant/defendant negligent in prosecuting the case and rejected the argument that the appellant/defendant's counsel was at fault for not informing about the case status.
Issues: Negligence in prosecuting the case, responsibility for case status information.
Ratio Decidendi: The duty of the litigant to remain vigilant and take responsibility for the case, availability of case status information on the District Judiciary website.
Final Decision: The appeal was dismissed, and the court held the appellant/defendant responsible for negligence in prosecuting the case.
VALMIKI J. MEHTA, J.
C.M. Appl. No. 34258/2017 (for exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
FAO No. 375/2017 and C.M. Appl. No. 34259/2017 (for stay)
1. This is a first appeal filed under Order XLIII(1)(d) Code of Civil Procedure, 1908 (CPC) impugning the order of the trial court dated 25.8.2017 by which the trial court has dismissed the application filed by the appellant/defendant under Order IX Rule 13 CPC and refused to set aside the ex-parte judgment and decree dated 21.1.2015.
2. By the ex-parte judgment dated 21.1.2015 the suit was decreed against the appellant/defendant for a sum of Rs.4,57,902/- along with interest on account of goods having been supplied by the respondent/plaintiff to the appellant/defendant and with respect to which a cheque was issued for a sum of Rs.5,52,172/- dated 17.8.2009 drawn on Indian Overseas Bank but that cheque was dishonoured. Trial court after considering the evidence passed the ex-parte judgment and decree dated 21.1.2015 and the relevant paras of that judgment being paras 4 to 6 read as under:-
“4. To prove its case, the plaintiff company has examined Shri Amal Ghosal, Attorney, as PW.1. He has deposed on affidavit Ex.PW.1/A and has reiterated the pleas taken by them in the plaint and got exhibited documents from Ex.PW.1/1 to Ex.PW.1/5 (all collectively) i.e resolution, power of attorney, statement of account, legal notice and receipts thereof. copies of remainders/e-mails, legal notice and post receipts thereof. In his additional affidavit Ex.PW.1/C, he has further got exhibited documents Ex.PW.1/6 to Ex.PW.1/29 i.e tax invoices, vat invoices, and goods receipts (GR).
5. I have heard Ld. Counsel for the plaintiff and have perused the material placed on record.
6. To ascertain as to whether the plaintiff has succeeded in proving its case or not, a look has to be made to the testimony of Shri Amal Ghosal, PW.1, and the documents got exhibited in his testimony.
Firstly, the documents got exhibited by him are taken up. If a look is made to Ex.PW1/6 to Ex.PW.1/29 which were the various tax invoices, vat invoices and goods receipts (G.R), it comes out that the defendants were having business dealings with the plaintiff. Ex.PW.1/2A was the original cheque for a sum of Rs.5,52,172/- issued by the defendants to the plaintiff, however, the same was dishonoured and Ex.PW.1/3( collectively) certified statement of account shows an outstanding amount of Rs. 4,57,902/- after adjustments.”
3. Appellant/defendant filed the subject application pleading that he only came to know about the ex-parte judgment and decree in around February 2016 on receiving notice of execution proceedings because though they were served in the suit but the counsels who had appeared for them did not inform to them about the status of the case. It is seen that summons were served upon the appellant/defendant on 17.7.2012 and the appellant/defendant were proceeded ex-parte on 16.2.2013. After service the appellant/defendant appeared in the suit though their counsel on 18.2.2013. Appellant/defendant is said to have moved an application for setting aside the ex-parte order dated 16.2.2013 and which was allowed vide order dated 13.8.2013 with directions to file the written statement, and since the written statement was not filed, appellant/defendant was again proceeded ex-parte on 9.10.2013.
4. Learned counsel for the appellant/defendant has argued that the Advocates of the appellant/defendant have put the appellant/defendant under a misconception by not informing the appellant/defendant about the status of the case and in fact even the application filed for setting aside the ex-parte order dated 16.2.2013 was supported only by the affidavit of the counsel for the appellant/defendant and not the appellant/defendant. It is therefore argued that for the fault of the counsel of the appellant/defendant, the appellant/defendant cannot be held responsible.
5. It is seen that the a
