The court emphasized that negligence in representation and the absence of sufficient cause to justify non-appearance can prevent setting aside an ex-parte decree under CPC.

Headnote:(A) Code of Civil Procedure, 1908 - Sections 115 and 151 - Civil suit for permanent and mandatory injunction - Petitioners sought to set aside an ex-parte decree citing counsel negligence and personal ailments - Court found petitioners negligent in pursuing their case, failing to properly address their representation throughout the proceedings - No sufficient cause established to intervene. (Paras 3, 6, 12)

(B) Appeal under Order IX Rule 13 CPC - Distinction with Section 96(2) CPC - Court may set aside ex-parte decrees if satisfied with proof of non-service or sufficient cause, yet petitioners' approach was deemed callous and unmeritorious. (Paras 9, 10, 11)

Facts of the case:
The petitioners, a son and daughter-in-law of the respondent, were served summons in a civil suit but failed to appear on numerous occasions leading to an ex-parte judgment being passed against them on 31.10.2019. Their attempts to set aside the decree were dismissed on grounds of late filing and negligence in pursuing the case.

Findings of Court:
The failure to represent adequately and the change of counsel did not satisfactorily explain the delays, leading to the conclusion that petitioners' conduct was negligent.

Issues: The main issues pertained to the adequacy of legal representation and whether there was sufficient cause for setting aside the ex-parte decree.

Ratio Decidendi: The court determined that a liberal interpretation of sufficient cause was not warranted due to the continuous negligence exhibited by the petitioners throughout the litigation process, concluding that they did not act in good faith or with due diligence.

Result: Petition dismissed.

Table of Content
1. background of civil suit and proceedings. (Para 3 , 4 , 5)
2. grounds for appeal based on negligence and service. (Para 6 , 8 , 9 , 10)
3. court's assessment of petitioners' negligence. (Para 7 , 11 , 12)
4. dismissal of the civil revision petition. (Para 13)

JUDGMENT

Manoj Kumar Ohri, J. (Oral)

The matter has been received on transfer by way of Supplementary Cause List.

CM.APPL. Nos. 439-440/2023 (Exemption)

1. Allowed, subject to all just exceptions.

2. Applications stand disposed of.

C.R.P. 1/2023 and CM.APPL. No. 438/2023 (Stay)

3. By way of present civil revision petition filed under Section 115 read with Section 151 CPC, the petitioners (appellants therein) have assailed the order dated 05.12.2022 passed by the learned ADJ-11 (Central District), Tis Hazari Courts, Delhi in RCA No. 69/2022 whereby their challenge to the order dated 21.04.2022 passed by the learned Civil Judge, was dismissed. The petitioners have also sought setting aside of the order dated 21.04.2022.

4. For the sake of felicity, brief facts, as noted in the impugned order, are that the respondent had preferred a civil suit seeking relief of permanent and mandatory injunction against the present petitioners who are statedly her son and daughter-in-law respectively. Summons of the suit were duly served on the present petitioners on 06.07.2017, whereafter, they admittedly engaged a Counsel to defend their case and represent them. The said Counsel appeared on 15.07.2017 and the case was adjourned for 11.09.2017. On the said date, the petitioners remained unrepresented and the case was renotified for 25.10.2017. Since the petitioners remained unrepresented even on the next date of hearing i.e., 25.10.2017, the matter was posted to 11.12.2017 subject to payment of costs of Rs.1,500/-. The petitioners engaged a new Counsel who filed written statement on 11.12.2017 which was beyond the permissible time and not accompanied by an application seeking condonation of delay. Thereafter, neither any Counsel appeared nor any steps were taken to bring on record the written statement filed on behalf of the petitioners. On 01.08.2018, the petitioners' defence was struck off and they were proceeded ex-parte. The matter was directed to be listed on 24.02.2018 when again the petitioners' Counsel preferred not to appear and the matter was next directed to be listed on 08.05.2018. The matter could not be taken up on 08.05.2018 on account of lawyer's strike and the matter was listed on 01.08.2018. Again, on 01.08.2018, the petitioners remained unrepresented and the matter was adjourned for 18.09.2018. Thereafter, the matter was adjourned on several dates. On 02.07.2019, the Counsel for the petitioners appeared and prayed that the matter be sent to Lok Adalat to explore the possibility of an amicable settlement. Albeit, the matter was listed before the Lok Adalat on 13.07.2019, however the same could not be settled and the file was sent back to the Court. The matter was again listed before the Trial Court on 29.07.2019 and 07.08.2019 when the Counsel for the petitioners sought further time to explore the possibility of settlement, however the same could not be arrived at between the parties. On 19.08.2019, an application under Order IX Rule 7 CPC came to be filed on behalf of the petitioners. By order of the same date, the said application was dismissed and the matter was directed to be listed on 04.09.2019. On 04.09.2019 also, the petitioners remained unrepresented and the matter was adjourned to 23.10.2019.

A perusal of the record would show that evidence of respondent/plaintiff was recorded and the Trial Court after noting the continued absence of the petitioners closed their right of cross-examination on 23.10.2019. Eventually, on 31.10.2019 after considering the evidence on record, an ex-parte judgment/decree was passed against the petitioners.

5. Subsequent thereto, the petitioners preferred an application under Order IX Rule 13 CPC seeking setting

Click Here to Read the rest of this document