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PUNJAB AND HARYANA HIGH COURT
A.N. Jindal, J.
M/s N.K. Electronics —Appellant
versus
Narinder Kumar —Respondent
FAO No. 3139 of 2012
Decided on 25.1.2013
Counsel for the Parties:
For the Appellant:Sumeet Mahajan, Sr. Advocate with Mr. Amit Kohar, Advocate.
For the Respondent:M.L. Sarin, Sr. Advocate with Mr. Nitin Sarin , Advocate.
IMPORTANT POINT
Order of proceeding ex parte merges in decree.
Headnote:(A) Administration of Justice—Role of Advocate—Relations between party and his agent/advocate are very sacrosanct and of very pious nature—Advocate through his power of attorney promises to pursue case to end and he has no right to abstain from court and also to inform party in case any adverse or favourable order is passed in case of his client—A party, when engages Advocate, presumes that he would all the way be sincere to conduct his case, support his cause to best of his ability, knowledge and competency—Their relationship has a foundation of mutual trust and confidence—He would represent his case and work under his instructions and he would inform him about court proceedings from time to time and in case of his non-appearance, he would arrange for a substitute—They besides being artisan of Rule of Law, are media between courts and customers of justice—They are supposed to assist courts fairly and without concealment off acts—They should maintain dignity of law as well as courts—They should maintain principle of privileged communications between them and their clients. (Paras 7 and 8)
(B) Civil Procedure Code, 1908—Order 9 Rule 13—Setting aside ex-parte decree—Non-appearance of Advocate—Ex parte proceedings and ex parte decree were passed on account of fault of counsel for defendant/applicant and he had no knowledge either of ex parte proceedings being taken against him nor he had any knowledge of passing of decree—Order of proceeding ex parte merges in decree—When ex parte decree is challenged then automatically order proceeding ex parte would be deemed to have been challenged and there is no specific rule that at the time of challenging ex parte decree, order proceeding ex parte has also to be separately challenged—Trial court has not touched core issue and examined law of land on the point— Application under Order 9 Rule 13 CPC accepted subject to payment of Rs.10,000 as costs and trial court directed to proceed in accordance with law. (Paras 16 to 20)
Result: Appeal allowed.
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 16.03.2005 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 AW1 and proved on record copy of the summons Ex. Al 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 RW1 produced an affidavit Ex. RWlA 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. RW2 Krishan Chand, Process Server had proved on record summons Ex.RW2A/A1, his report Ex. RX/1 made on the summons and report of the Nazir Ex.RX2.
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
