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IN THE HIGH COURT OF DELHI
Navin Chawla, J.
Livewell Aviation Services Pvt. Ltd. - Appellant
Versus
Rajesh Chawla - Respondent
CM(M) 37 of 2021 & CM Appl. 1784 of 2021
Decided On : 25-01-2021
Litigants must exercise due diligence in monitoring their cases; negligence cannot be attributed solely to counsel.
Headnote:(A) Code of Civil Procedure, 1908 - Order IX Rule 13 - Dismissal of application for setting aside ex parte judgment and decree - The court emphasized that due diligence must be observed by parties, highlighting the absence of justification provided for multiple missed hearings and the lack of follow-up on the case. (Paras 3, 20-22)
(B) Until efforts are made to ascertain the status of proceedings, litigants must remain attentive to their cases rather than attributing blame solely to their counsel's oversight. (Paras 8, 9)
Facts of the case:
The petitioner sought to challenge an ex parte judgment allowing a claim towards Service Tax, post an extended period of non-appearance in court. The petitioner failed to present evidence and did not track the proceedings, resulting in dismissal.
Findings of Court:
The petitioner’s lack of diligence and prolonged absence merited dismissal of the application.
Issues: The core issues revolved around the justification for the absence during hearings and whether the petitioner presented adequate grounds for setting aside the ex parte decree.
Ratio Decidendi: The court found that the petitioner showed a total lack of diligence in monitoring the case status and attributed negligence to their counsel without valid justification.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. application to set aside ex parte decree (Para 2 , 3) |
| 2. arguments related to service of notice (Para 4 , 5 , 6 , 7) |
| 3. litigant's responsibility for diligence (Para 8) |
| 4. merits not addressed in this petition (Para 9) |
| 5. petition dismissed without costs (Para 10) |
JUDGMENT
Navin Chawla, J. (Oral)--This petition has been heard through video conferencing.
2. This petition has been filed by the petitioner feeling aggrieved of the order dated 10.02.2020 passed by the learned Additional District Judge-06, West District, Tis Hazari Courts, Delhi in M.No. 51/2019 titled Shri Rajesh Chawla vs. Livewell Aviation Services Pvt. Ltd., dismissing the application filed by the petitioner herein under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside the ex parte judgment and decree dated 07.03.2018.
3. By the judgment and decree 07.03.2018, the Suit filed by the respondent herein, being CS No. 8583/2016, was decreed in favour of the respondent allowing the claim of the respondent towards Service Tax alongwith interest. The petitioner thereafter filed an application on 12.12.2018 seeking setting aside of that decree. The said application has however been dismissed by the learned Trial Court observing as under:-
"11. Prior to considering the said contention raised on behalf of plaintiff/respondent, it is relevant to note that in the present case plaintiff was cross examined on behalf of defendant and the case was at the stage of Defendant evidence when Defendant stopped appearing before the Court and the DE was closed on 09.08.2017 and thereafter, case was listed for final arguments.
12. On 16.10.2017, defendant was given an opportunity to file written arguments or to advance the arguments and thereafter, on 07.03.2018 judgement and decree was passed.
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18. Record of the case would reveal that present suit was instituted in September 2014 and Plaintiff evidence was closed on 13.01.2017 and case was fixed for Defendant evidence on 08.03.2017 and thereafter, case was listed for Defendant evidence on 28.04.2017. Defendant was directed to file evidence by way of affidavit with an advance copy to the counsel for plaintiff. It was also recorded that even list of witness was not filed. It is also relevant to mention that on 28.04.2017, direction was given to the Defendant to file the evidence by way of affidavit.
19. On 30.05.2017, opportunity was granted to the defendant to lead evidence and court notice was also issued to the defendant for 09.08.2017. On 09.08.2017, Defendant evidence was closed and the case was fixed for final arguments for 16.10.2017, 15.11.2017, 25.11.2017, 18.12.2017, 07.03.2018, the judgment and decree was passed.
20. Plea taken by the applicant/defendant in his application is that next date of hearing i.e. 30.05.2017 was not posted in the diary of the counsel for defendant. Perusal of the vakalatnama filed on behalf of defendant would indicate the name of M.V.Kini and Co. was shown in which the name of four advocates were mentioned and it is not specified as to how a single date i.e. purported to be missed on 28.04.2017 would create a situation that for a period of more than 1.5 years it would neither come into the knowledge of applicant/defendant nor to his counsel that judgment and decree was already pronounced on 07.03.2018. Not a single document has been placed on record to show that there is a due diligence on the part of defendant to inquire about the fate of his case which is at the stage of Defendant evidence since 13.01.2017. In the present case, it is not only the question of default of one or two dates of hearing as perusal of proceedings would indicate that as many as 7 dates within a span of more than one year has passed but no steps were taken by either counsel for defendant or defendant. There is a total lack of due diligence on the part of defendant and counsel for defendant.
21. It is also relevant to note that even if some date is missed to be noted down in diary b
