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2013 Supreme(P&H) 54
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice A.N. Jindal
F.A.O. No. 3139 of 2012 (O&M)
M/s. N.K. Electronics
v.
Narinder Kumar
{Decided on 25/01/2013}
For the Appellant:Mr. Sumeet Mahajan, Sr. Advocate with Mr. Amit Kohar, Advocate.
For the Respondent:Mr. M.L. Sarin, Sr. Advocate with Mr. Nitin Sarin, Advocate.
Headnote:Ex parte decree--Setting aside of--Held; when ex-parte decree is challenged, then automatically the order proceeding ex- parte would be deemed to have been challenged.
(A) Civil Procedure Code, 1908, O.9, R.13--Ex parte proceedings--Setting aside of--Suit was moving with snail pace--Appellant/Respondent was assured by his counsel that he would be informed about the substantial date when he is to come--Appellant/Respondent stayed back and he was proceeded ex parte--Held; casual approach of court to adjourn the case time and again without taking any substantive steps towards decision on application or for inviting evidence, accompanied by assurance of his counsel to miss court for a few hearings, until the case is fixed for substantial hearing could be said to be a sufficient cause in given circumstances of the case for not attending the dates--Ex-parte proceedings as well as ex-parte decree set aside subject to payment of Rs.10,000/- as costs. (Paras 6 & 20)
(B) Civil Procedure Code, 1908, O.9, R.13--Ex parte decree--Setting aside of--Held; when ex-parte decree is challenged, then automatically the order proceeding ex- parte would be deemed to have been challenged--There is no specific rule that at the time of challenging ex-parte decree, the order proceeding ex- parte has also to be separately challenged. (Para 16)
(C) Limitation Act, 1963, S.5--Ex parte proceedings--Application for setting aside of--Condonation of delay--Application for setting aside ex-parte decree could be filed even after the prescribed period of limitation if applicant satisfies Court that he was prevented by sufficient cause from filing application within prescribed time--Civil Procedure Code, 1908, O.9, R.13. (Paras 19 & 20)
Non appearance of advocate and his failure to communicate that defendant has been proceeded against ex-parte and appellant’s lack of knowledge of ex-parte judgment and decree dated 12.2.2007 having been passed against Appellant/Respondent till 24.7.2007--Held; combined reading of R.13 r/w s.5 of the Limitation Act make it abundantly clear that the application for setting aside ex-parte decree could be filed even after the prescribed period of limitation if applicant satisfies Court that he was prevented by sufficient cause from filing application within prescribed time--Abovementioned facts could be treated as sufficient cause for condoning the delay and setting aside ex-parte decree or treating the application to be within limitation--Ex-parte proceedings as well as ex-parte decree set aside subject to payment of Rs.10,000/- as costs.
Mr. A.N. Jindal, J.: - In a suit instituted at the instance of Narinder Kumar Proprietor of M/s N.K. Sales Corporation (herein referred as, ‘the respondent’), the defendant M/s N.K. Electronics appellant was proceeded against ex-parte on 10.10.2006 and ex-parte decree was passed on 12.2.2007. According to the appellant he came to know about the ex-parte decree on receipt of the summons in an execution on 24.7.2007 and he moved an application for setting aside ex-parte proceedings and decree on 22.8.2007. This suit was under the Copy Right and Trade Marks Act pending before the Additional District Judge, Ludhiana, therefore, he dismissed the application for setting aside the ex-parte decree on 28.3.2012, against which this appeal has been preferred.
2. In his application for setting aside the ex-parte decree, he had pleaded that he continued attending the case since the very date he was summoned in the case. He filed written statement through his counsel Mr. Jaswant Singh on 16.3.2005 and plaintiff filed replication on 27.4.2005 and attended the proceedings up to 18.7.2006. Since the case was being adjourned unnecessarily from time to time, he was told by his counsel that he would inform him when the case is fixed for substantial date or for evidence. However, on 10.10.2006, neither he nor his counsel appeared, therefore, he was proceeded against ex-parte and ultimately ex-parte decree was passed against him on 12.2.2007. However, he came to know about the ex-parte decree on 24.7.2007 when he received summons, as such, he having filed the application within one month from the date of knowledge has prayed for setting aside the ex-parte decree.
3. Upon notice the defendant appeared and contested the application. He has stated that the application was hopelessly time barred. The plaintiff was a registered owner of the trade mark N.K. Sales Corporation and the defendant had been deliberately infringing his trade mark. Since the defendant-appellant (herein referred as, ‘the appellant’) had no case, therefore, he intentionally absented himself from the court and ultimately ex-parte decree was passed against him. The application is time barred. After passing of the decree, it was immediately conveyed to the plaintiff in the presence of Dr. Dev Kaushal at his shop and he was requested not to continue to use his trade mark but he did not agree. Summons were sent to him. His absence from the court was intentional. Thus, he prayed for dismissal of the application.
4. From the pleadings of the parties, the trial court framed the following issues.
1. Whether there are just and sufficient grounds to set aside the decree dated 12.2.2007?OPA
2. Whether the application is within time?OPA
3. Relief.
5. Both the parties led evidence. The defendant appeared himself as AW-1 and proved on record copy of the summons Ex.A1 which he received on 24.7.2007 regarding the execution proceedings. On the other hand, the respondent Narinder Kumar while appearing in the witness box as RW-1 produced an affidavit Ex.RW1/A and proved on record, the receipt regarding his application for registration of the trade mark filed on 27.1.2005 Ex.R1, copy of certificate of registration of the trade mark/trade name of N.K. Sales Corporation Ex.R2 and copy of the legal proceedings Ex.R3 and certificate of registration of his trade mark issued by the Government of India Ex.R4. RW-2 Krishan Chand, Process Server had proved on record summons Ex.RW2/A/A1, his report Ex.RX/1 made on the summons and report of the Nazir Ex.RX/2.
6. The facts and circumstances emanating from the file appear to be that the suit which was filed on 3.2.2005 moved at snail pace till 10.10.2006. Since no order of injunction, during this period, was passed against the appellant and the application was still pending for arguments along with the application for amendment of the plaint, therefore, the defendant could not be said to be apprehensive of the feeling that he had no case at all and it was
