MANU/DE/0232/1987 Equivalent Citation: AIR1988Delhi213, 1988(14)DRJ39 IN THE HIGH COURT OF DELHI Interim Application Nos.

6270 and 6271 of 1986 and Suit No. 1601 of 1985 Decided On: 14.07.1987 Appellants: Gloria Chemicals Vs. Respondent: R.K. Cables and Ors. Hon'ble Judges: A.B. Saharya, J. Counsels: P.D. Gupta and A.K. Singh, Advs Subject: Commercial Catch Words Mentioned IN Acts/Rules/Orders: Code of Civil Procedure, 1908 - Order 9 Rule 9 Case Note: Civil Procedure Code, 1908 - Order 9--Rules 9 and 13--Ex-parte decree Restoration--condensation of delay--Mistake/inaction of counsel as sufficient cause. Party ought not to bepenalised unless there is remissness on the part of party. Sufficient Cause must receive liberal construction so as to advance substantial justice. HeldWhere no negligence or inaction or want of bonafide is imputable to a party. Mistake of counsel in those circumstances can be taken into account in condoning delay but such mistake by itself is not sufficient. Where the conduct of the applicant was far from bonafide, trying to abused the goodness of law, trying to delay the execution proceedings. Mistake inaction of counsel in such circumstances was held not to be sufficient cause for condensation of delay in restoring application for setting aside ex parte decree. (Paras 24, 28) JUDGMENT A.B. Saharya, J. (1) By these applications defendants 1, 2 and 3 have prayed that their earlier application registered as I.A. 3895 of 86 under Order Ix Rule 13, Civil Procedure Code for setting aside ex parte decree dated 30th April, 1986, which was dismissed on 24th July 1986, be restored and the delay in applying for it be condoned. (2) In the suit a decree was sought against the defendants for recovery of Rs. 1,35,000 with interest and costs. (3) Defendant No. I is a partnership firm. Defendants 2 and 3 axe brothers. They and defendant No. 4 are partners of the firm. The defendants were duly served with summons in the suit. Mr. B.L. Gupta Advocate, appeared on behalf of all the defendants on 10th January 1986. He sought adjournment to file written statement and reply to application of the plaintiff for interim orders. On the next date of hearing on 12th February 1986, Mr. Gupta stated that he was appearing only for defendants 2 and 3. Since the other two

defendants had earlier been served, they were proceeded ex parte. Further adjournment was granted to Mr. Gupta to file written statement on behalf of defendants 2 and 3. Neither written statement was filed nor any one appeared for these defendants on 26th February 1986 and on 4th March 1986. Therefore, order was made to proceed ex parte against defendants No. 2 and 3 also. Ex-parte evidence was recorded on 26th April 1986. Ex-parte judgment and decree was passed on 30th April 1986 for Rs. 1,35,000 with costs and also interest at the rate of 18 per cent per annum on the amount of Rs. 89,305 from the date of the institution of the suit till payment. (4) On behalf of defendants 1, 2 and 3 an application under Order Ix Rule 13 Civil Procedure Code was filed on 8th July 1986. This application was registered as I.A.3895 of 1986. It was listed before Court on 10th July 1986. None appeared for the applicants. It was directed to be listed again on 24th July 1986. That day also, no one appeared for the applicants. Consequently, it was dismissed in default on 24th July 1986. (5) Thereafter, the decree-holder took steps to execute the decree. Properties mentioned in the execution petition registered as Ex. No. 149 of 1986 were ordered to be attached. (6) The present applications were filed on 10th November 1986 along with yet another application, I.A. 6269 of 1986, by which stay of execution of decree was sought pending decision of these two applications. (7) The applicants admit that they engaged Mr. B.L. Gupta, Advocate; to represent them in the suit. It is also admitted that after hearing on 12th Feb., 1986 Mr.Gupta informed the applicants about the next date of hearing on 26th May 1986. It is alleged that they briefed Mr. Gupta for preparing the written statement, but, on or about 26th/27th May 1986, when the Applicants again contacted their Advocate, they came to know of ex parte judgment and decree passed against them on 30th April 1986. It is admitted that is 3895 of 1986 was filed by the applicants through Mr. B.L. Gupta, Advocate for setting aside the ex-pane judgment and decree. Thereafter, it is alleged that, as and when the applicants contacted Mr. Gupta, they were told that I.A. 3895 of 1986 was being prosecuted with due diligence. (8) It is alleged that suddenly, on 28th October 1986 the applicants. were informed by lady members of their family that warrants of attachment have been issued in the case. On this information, it is alleged, they rushed to the office of Mr. B.L. Gupta, Advocate. They were unable to get in touch with him. So, they asked Mr. Sikandar Ali, Advocate in his office to enquire into the matter. After preliminary inspection of the case file, he informed the. applicants that I.A. 3895 of 1986 was dismissed in default on 24th July 1986. Mr. Gupta was not available to the applicants even in the evening on 28th October 1986. So, they contacted Mr. A. K.. Singla, Advocate. He required the case file to advise the applicants. inspire of repeated visits to the office of Mr. Gupta, it is alleged, the applicants could not get the file of the present case, but they were able to obtain the file of another Suit No. 1602 of 1985 (Maid Dang v. R.K. Cables). Mr. Singia inspected court record on 7th November 1986, and, filed the present applications. (9) According to the applicants they were not informed by Mr. Gupta about the dates of hearing, and, of dismissal, of I.A. 3895 of 1985. It is also alleged that they were advised not to appear in person in Court, as they were not permitted to do so, and, as they were not aware of the Court procedure, they accepted the advice given to them by Mr. B.L. Gupta, Advocate. It is, Therefore, contended that there was sufficient cause, for their absence from Court on 24th July 1986, for restoring I.A. 3895 of 1986, and, for condoning the delay in applying for restoration of that application. (10) The applications have bean opposed by the plaintiff. It is alleged that the applicants were aware of all the proceedings, that there are several other cases pending in various Courts between the parties in which they are represented by the same counsel, namely Mr. B.L. Gupta, that they have been meeting, him regularly, and that they have themselves also been appearing in various Courts. It is alleged that the applications have been filed with an ulterior motive to obstruct and delay execution of the decree.

(11) These two applications were taken up on 2nd March 1987 and the following issues were framed: 1. Whether there was sufficient cause for non-appearance on 24th July 1986 when the application (I.A. 2895/86) was dismissed in default? 2.Whether there was sufficient reason for extending the limitation in making the application under Order Ix Rule 9 CPC? 3.Relief. (12) On the third application, I.A. 6269 of 1986, an order was made on 2nd March 1987 as follows : "KEEPING in view all the facts and circumstances, I stay the execution of the decree till the disposal of the application under Order 9, Rule 9, provided the applicants deposit Rs. 67,500 in Court within one month from today and furnish bank guarantee for the remaining decretal amount to the satisfaction of the Registrar of this Court." (13) The applicants failed to comply with both the conditions. Just after expiry of the period of one month, on 4th April 1987 they filed another application (IAs 2388 of 1987) under Section 148 Civil Procedure Code asking for four weeks more to deposit the amount of Rs. 67,500. Nothing was said about the bank .guarantee for the remaining decretal amount. Execution proceedings and the hearing of the two applications in hand were postponed from time to time for disposal of is 2388 of 1987. All these matters were finally taken up together for hearing. Instead of justifying the application, and meeting the challenge to it raised in the plaintiff's reply, is 2388 of 1987 was withdrawn, and, it was dismissed as such on 29th April 1987. (14) In this background, it has to be considered whether there was sufficient cause for non-appearance on 24th July 1986 and for condoning the delay in making the application under Order Ix, Rule 9 Civil Procedure Code on 10th November, 1986 to set aside the order dated 24th July 1986. (15) Law is now well settled that words 'sufficient cause' should receive liberal construction, so as to advance substantial justice, when no negligence or inaction or want of bonafide is imputable toa party (See State of 'West Bengal v. Administrator, Howra Municipality, MANU/SC/0534/1971 : [1972]2SCR874a ). (16) At the time of hearing, the applicants placed entire blame on their Advocate Mr. B.L. Gupta for ex-parte proceedings, judgment and decree, and, also, for dismissal in default of the applicationto set aside the ex-parte decree. According to them, he was negligent and the applicants should not be made to suffer for his negligence. Reliance was placed upon decisions in J.E. Billimoria and Sons v. Gopinafh, Air 1938 Nagpur370, Shyam Lal Dhar v. Ply Board Industries, MANU/JK/0032/1981. Baldev Singh v. State of Punjab (1982) 84 Plr 124, and, Collector, Land Acquisition v. Katiji, (1987) 2 Scc 1400. (17) In the case of J.E. Billimoria and Sons (supra), the defendant had been present at every hearing uptil November 1,1935. He and his counsel were both absent when case was called. The Court proceeded ex-parte. and, after examining the plaintiff and his two witnesses, passed an ex-parte decree, A few minutes later, the defendant's counsel appeared, and conducted the very next casebefore the same Court, but was told that judgment had already been delivered ex-parte. Defendant applied to have the order set aside. The trial court rejected the application on the ground that no sufficient cause had been shown to set aside the order. The defendant applied for revision. The High Court found that defendant was not to be blamed, he had engaged a counsel and paid his fee, he did all that he could to participate in the proceedings. Even the counsel was found to be not negligent. It was observed that even when counsel was negligent, it is neither possible nor desirableto make any hard and fast rule, but speaking generally, a party ought not to be penalised unless there is a remissness on his part. While considering the nature of requirement of a party toappear, it was said that he

employed counsel for this purpose, he must ensure that the person he employs appears when the case is called or there is somebody else to represent him, which means that he must pay counsel adequately or appoint another who is there to help him. If he does that, then, he has done all that the law can reasonably expect of him. If inspire of that, counsel does not appear, Vivian Bose J. observed : "I hardly think litigant can be held responsible. After all he is not allowed to employ anybody he chooses. He is forced to confine himself to a special class of persons whom the Courts and the State hold out to the general public as specially honest, competent, reliable and responsible, and who for that reason have been given an exclusive monopoly to practices in Courts of justice. If the person so selected behaves in an irresponsible manner, the remedy is for those responsible for placing him in this privileged position to punish biro and, to ensure as far as may he that the .public, at 'large are not left to the mercy of his irresponsibility or incompetency a second time. It is manifestly unjust in these circumstances to blame the litigant." (18) This observation of Vivian Bose J. has to be considered in the context of the Courts exercising control over conduct of advocates those days. It is not so now. Control over conduct ofadvocates now vests in another authority. It cannot be said now that the Courts "hold out" to the general public that advocates are specially honest, competent, reliable or responsible, though the courts still like to have that faith in advocates inspire of having no control over their conduct. (19) In Shyam Lal Dhar v. Ply Board Industries (supra), a Full Bench or Jammu and Kashmir High Court considered the question whether the defendant could be held responsible for negligence of the counsel. The Full Bench agreed with the observations of Vivian Bose J. in J.E. Billimoria (supra) and also relied upon the observations of the Supreme Court in the case of State of West Bengal (supra) where it was observed that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice or when no negligence or inaction or want of bonafides is imputable to the parties. The Full Bench came to a conclusion that it is difficult to lay down any inflexible rule and that each case must be decided on its own facts but generally speaking, alitigant would not be responsible for negligence of his. counsel unless there is any remissness on the part of the litigant itself. (20) In Baldev Singh v. State of Punjab (supra) it was found that the claimants had engaged a counsel who failed to appear on the date fixed, and also failed to inform the parties about the dismissal of the case. It was held that for this 'mistake' of counsel, the client cannot be penalised for the delay in making application for restoration of the reference which was dismissed in default. (21) In Collector, Land Acquisition (supra) the Supreme Court reiterated liberal approach in construing the expression "sufficient cause" to enable the court to apply the law in a meaningful manner which subserves the ends of justice. In this case the Supreme court was not dealing with question of negligence of counsel absolving a party from responsibility for default in the prosecution of acase. (22) In the case of Rafiq v. Munishi lal, MANU/SC/0076/1981 : [1981]3SCR509 , the High Court disposed off Rafiq's appeal in the absence of his counsel. When the appellant became aware of it, he moved an application to recall the order dismissing his appeal and to permit him to participate in the hearing of the appeal. This application was rejected on the ground that though the application was prepared and drafted and an affidavit was sworn on Oct. 29, 1980, the same was not presented to the court till November 12, 1980, and that there was no satisfactory Explanationn for this slackness on the part of the advocate who was to file the application. D.A.Desai J. noticed that under our present adversary legal system where the parties generally appear through theiradvocates, the obligation of the parties is to select his advocate, brief him, pay fees .demanded by him, and then trust the Id. advocate to do the rest of the things. The party may be avillager, or may belong to a rural area, and may have no

knowledge of the court's procedure.After engaging a lawyer, the party may remain supremely confident with the lawyer who is looking after .his interest,: It was observed that Court cannot be a party to an innocent . party suffering injustice merely because his chosen advocate defaulted. The appeal was allowed and order of the High Court was set aside. (23) In Mala Din v. A. Narayanan, MANU/SC/0621/1969 : [1970]2SCR90 , the Supreme Court observed as follows in para 6 at page 1954: "THE law is settled that mistake of counsel made in certain circumstances be taken into account in condoning delay although there is not general proposition that mistake of counsel by itself is alwaysa sufficient ground. It is always a question whether the mistake was bonafide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant to save limitation in an underhand deal." (24) In view of all these cases, I find that although mistake of counsel in certain circumstances can be taken into account in condoning delay, yet the absolute proposition advanced by Id. counselfor applicants, that alleged negligence of Mr. B.L. Gupta, Advocate is itself sufficient to allow their applications, is not correct. (25) Can it be presumed that Mr. B.L. Gupta, Advocate was negligent merely because it was so alleged ? Can it be decided in the present proceedings whether he was negligent, and that too in his absence, and without giving him an opportunity to defend himself? I do not think so. Any allegation of negligence against an advocate is a serious matter. It reflects upon his professional conduct. It cannot be tried in these proceedings. Enquiry into it in the domain of another authority. (26) Even otherwise, Mr. B.L. Gupta was engaged by the applicants in this case. They engaged him in several other cases in various courts. His authority has not been revoked. He is still theirAdvocate. They. have mot taken any action against him for his alleged negligence. Even if Mr. Gupta was negligent, should the plaintiff suffer because of negligence of agent appointed by the applicants. General law of agency governs the relationship between litigants and advocates also. Provisions of Sections 211 and 212 of the Contract Act are particularly relevant. They read as follows : "211.An agent is bound to conduct the business of his principal according to the directions given by the principal, or in the absence of any such directions, according to custom which prevails in doing business of the same kind at the place where the agent conducts such business. When the agent acts otherwise, if any loss be sustained, he must make it good to his principal, and, if any profit accrues, he must account for it." "212.An agent is bound to conduct the business of the agency with as much skill as is generally possessed by persons engaged in similar business unless the principal has notice of his want of skill. The agent is always bound to act with reasonable diligence, and to use such skill as he possesses; and to make compensation to his principal in respect of the direct consequences of his own neglect, want of skill, or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such neglect, want of skill, or misconduct." (27) If Mr. B.L. Gupta acted in any manner contrary to directions given by the applicants, or against the custom, or practice of his profession of if any loss is caused to the applicants, he must make it good to the applicants, and, if it is found that Mr. B.L. Gupta did not act with reasonable diligence, then, he is bound to-make compensation to the applicants in respect of direct consequences of his negligence or misconduct, if any. It cannot be said that if the decree already passed is executed against the applicants then they will suffer or that they will be left without any remedy for no fault of their's. If they are right in alleging negligence, or misconduct on the part of Mr. B.L. Gupta, they have remedy available to them in accordance with law. On the other band, there is no reason shown why the plaintiff must be made to suffer for default of the Applicants or for alleged negligence of their agent in the discharge of his duties or his obligations

which he owed to the Applicants. (28) Irrespective of everything else, it has to be seen whether the applicants are so innocent as to deserve equity and relief sought by them in the present applications. They cannot escape the test : Is no negligence or inaction or want of bonafidesimpugnible to them ? (29) It is not even averred in the applications that full or any fee was paid to Mr. B.L. Gupta, Advocate. Without any such averment, it cannot be said that the Applicants did all that they oughtto have done in securing proper representation through him as an Advocate. The Applicants do not fall in any of the categories envisaged by D.A. Desai J. in the case of Rafiq (supra). They are not villagers: They do not belong to any rural area. They are not ignorant of the court's procedure. On the contrary, they are traders carrying on business in Delhi, they are indulging in a lot of litigation, many of their cases are still pending, and they are pursuing them in courts. Interesting enough, Mr. B.L. Gupta is still their advocate. His authority has not been revoked by the applicants in thiscase or in any other case. (30) The suit was instituted in September 1985. The applicants were duly served with summons, they entered appearance, but (hey filed no pleading in court. It they had honest intention tocontest the suit, they should have insisted, upon their pleadings being filed by their advocate. It is admitted that Mr. B.L. Gupta, Advocate informed them of the ex parte decree passed on April 30, 1986, and on their instructions he made the application for setting it aside. They were fully conscious of default of Mr. Gupta which led to the ex parte decree. It is too much to accept by way of an Explanationn that every time they made an enquiry from Mr. Gupta about the fate of their application for setting aside the ex parte decree, they were told that the application was being pursued diligently and that they felt satisfied with this information. They never cared to ask their Advocate about the next date(s) of hearing on the application which was vital for setting aside the ex parte decree. (31) The applicants are defendants in another suit (Suit No. 1602 of 1985) Smt. Mala Dang v. R.K. Cables and others. Proceedings in the two suits were going on side by side. There also, the applicants employed tactics similar to the case in hand. Applications for setting aside ex parte decree in Suit No. 1602 of 1985 were heard together with the present applications. To properly appreciate the modus operandi of the applicants, it is useful to refer to the course of their conduct in proceedings in Suit No. 1602 of 1985 also which is clear from separate order being pronounced today in that case. (32) Even during pendency of the present applications stay of execution of the decree was granted by an order made on November 10, 1986 on the condition that the applicants deposited a sum of Rs. 67,500 and furnished a bank guarantee for the balance amount within one month from the date of the order. They failed to fulfill either of these two conditions. No steps at all were taken tofurnish bank guarantee. They waited up to the expiry of the month, and then made an application, is 2388 of 1987 under Section 148 Cpc, for extension of time further for one month to deposit Rs. 67,500. That application was made on vague allegations, without giving proper particulars of the alleged efforts made by them to raise money to deposit that amount. When that application came upfor hearing, it was withdrawn on April, 29 1987. Thus, the decree-holder has been kept at bay. On their own showing, the applicants have no funds. They are financially in dire straits. They were unable to raise Rs. 67,500 or to even furnish the Bank Guarantee to fulfill the condition on which court granted stay of execution of the ex parte decree. (33) On these facts, there is no escape from the conclusion that the applicants are only interested in delaying disposal of the proceedings in Court. Every act of the applicants is calculated to delay the proceedings. Apparently,. they have tried to take undue advantage of Courts extending protection to innocent litigants from suffering for mistake

or inaction of the advocate engaged by them. Goodness of law has been abused by the applicants in this case. Their conduct is far from bonafide. Therefore, is Nos. 6270 and 6271 of 1986 are dismissed with costs, Counsel's fee Rs. 2,200. Manupatra Information Solutions Pvt. Ltd.
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