The court dismissed an appeal filed by the Union of India challenging the refusal to set aside an ex-parte decree and order closing the right to file a written statement, finding no sufficient cause for the gross negligence and delay by the government department.
The first appeal was dismissed, leaving the ex-parte decree and orders intact.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
% 5th July, 2017 UNION OF INDIA ..... Appellant Through: Mr. Vivekanand Mishra and Mr.Vipul Agarwal, Advocates. versus M/S J W T ..... Respondent Through: Mr. Aayush Agarwala and Mr. Pramod B. Agarwala,Advocates.
CORAM: HON’BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CAVEAT No. 593/2017
Since counsel for the caveator has entered appearance the caveat stands discharged.
C.M. Appl. No. 23022/2017 (for exemption)
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
FAO No. 279/2017 and C.M. Appl. Nos. 23023/2017 (for stay)
FAO No. 279/2017 Page 1 of 8
which the application of the appellant/defendant under Order IX Rule 13 CPC has been dismissed and the court below has refused to set aside the ex-parte judgment and decree dated 12.9.2013 by which the suit of the respondent/plaintiff was decreed for a sum of Rs.39,96,491.24 along with interest at the rate of 12% per annum.
FAO No. 279/2017 Page 2 of 8
assigned to the respondent/plaintiff was completed and handed over to the appellant/defendant. Since the appellant/defendant made only a
total payment of Rs.70,00,068/- there remained a balance payment due of Rs.31,12,332/-. Appellant/defendant however only paid a sum of Rs.6,05,126/-, and hence by the subject suit the respondent/plaintiff claimed balance payment of Rs.25,07,206/- along with interest totaling to Rs.39,96,491/-.
(ii) Appellant/defendant was duly served in the suit.
Appellant/defendant appeared though counsel in the suit firstly on 16.3.2011. Appellant/defendant, however, from 16.3.2011 right till 5.9.2012 did not file any written statement. The right of the appellant/defendant therefore to file written statement was hence closed vide order dated 23.5.2012 and appellant/defendant was thereafter also proceeded ex-parte on 5.9.2012. Respondent/plaintiff led ex-parte evidence and proved documents Ex.P-1 to P-21. Consequently, the Court on the basis of evidence led decreed the suit of the respondent/plaintiff.
but this was not taken on record because the appellant/defendant was
FAO No. 279/2017 Page 3 of 8
proceeded ex-parte on 5.9.2012 and its right to file the written statement was closed vide an earlier order dated 23.5.2012 and the appellant/defendant was proceeded ex-parte on 5.9.2012. It is argued on behalf of the appellant/defendant that there was difficulty on account of change of counsels by the appellant/defendant and hence written statement could not be filed. Time was also lost in taking instructions. These aspects and stand of the appellant is referred to in paras 4 and 5 of the impugned order dated 21.3.2017 and these paras read as under:-
“4. The defendant/applicant was proceeded ex-parte vide order dated 05.09.2012. It is submitted that Directorate of Advertising and Visual Publicity (DAVP) being one of the Ministry of Information and Broadcasting requested the Ministry of Information and Broadcasting to appoint a Government counsel on 24.08.2011. It is submitted that on 27.09.2011, the nominated counsel sought four weeks time to file written statement on behalf of the defendant. It is further submitted that on 03.11.2011, counsel for the defendant contacted the defendant that the comments forwarded to him were not sufficient to draft a suitable reply. It is further submitted that the on 24.02.2012, AD, DAVP was nominated to prepare a para wise comments and on 30.04.2012, a letter was written to the counsel asking about the current status of the matter. It is further submitted that the matter was listed before Hon‟ble High Court on 23.05.2012 for filing the written statement and the previous counsel had already returned back the brief and no new counsel was appointed, therefore, on 23.05.2012, nobody was present and right to file the written statement was closed.
It is further submitted that on 11.06.2012 the Ministry of Information and Broadcasting again wrote a letter with regard to take steps for appointment of new counsel. It is further submitted that the on 24.02.2012, AD, DAVP was nominated to prepare a para wise comments and on 30.02.2012, a letter was written to the counsel asking about the current status of the matter. It is further submitted that the matter was listed before Hon‟ble High Court on 23.05.2012 for filing the written statement and the previous counsel had already returned back the brief and no new counsel was appointed, therefore, on 23.05.2012, nobody was present and right to file the written statement was closed.
FAO No. 279/2017 Page 4 of 8
It is further submitted that on 11.06.2012 the Ministry of Information and Broadcasting again wrote a letter with regard to take steps for appointment of new counsel. It is further submitted that on 06.02.2013, the new nominated counsel prepared and finalize the affidavit based on comments provided to him and the counsel failed to attend the Court hearing on 04.03.2013. It is further submitted that on 10.05.2013, the counsel appeared and sought time to inspect the Court records and to take appropriate steps in the matter. It is further submitted that counsel contacted the department and drafted the written statement along with delay application and submitted the same on 31.07.2013. It is further submitted that the same was returned under the objection as the right to file written statement already stood closed vide order 23.05.2012 and the defendant was proceeded ex-parte on 05.09.2012, therefore written statement could not be brought on Court records. It is further submitted that on 04.04.2014, counsel was nominated for the purpose of filing appeal against the judgment dated 12.09.2014 before the Hon‟ble Division Bench of High Court. It is further submitted that the complete documents along with the plaint were forwarded to the counsel on 23.04.2014 to prepare appeal against the order dated 12.09.2013.
FAO No. 279/2017 Page 5 of 8
under in paras 16 and 17 of the impugned order and the same reads as
under:-
“16. Further, a plain reading of the provisions of Order 9 Rule 13 CPC indicates that an ex-parte decree can be set aside when a defendant satisfies the court that the summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing. As per second proviso of Order 9 Rule 13 CPC, this court is proscribed from setting aside the ex parte decree on mere irregularity in the service of summons or in a case where the defendant had notice of the date of hearing and sufficient time to appear in court. In order to determine the application under Order 9 Rule 13 CPC, the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Therefore, the applicant must approach the court with a reasonable defence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand.
to add that CPC was amended by the Amendments of 1999 and 2002
for ensuring that ordinarily the written statement should be filed within
a maximum period of ninety days. No doubt, the period of ninety days
is not mandatory and only directory, however, intention of legislature
FAO No. 279/2017 Page 6 of 8
was that not too much time should be taken for filing of the written statement. In the present case appellant/defendant was served in the suit on 16.3.2011 and it got time till 23.5.2012 i.e over one year and two months to file the written statement. That is the period of over one year and two months well beyond the period of ninety days and yet the appellant/defendant did not file the written statement. Accordingly, the right of the appellant/defendant to file the written statement was closed on 23.5.2012 and appellant/defendant was proceeded ex-parte on 5.9.2012. The court below was also right in observing that if the written statement was filed in July, 2013 which was not taken on record then why immediately thereafter the subject application under Order IX Rule 13 CPC was not filed because this application was only filed much later in August, 2014. The second name of the appellant is obviously „lethargy‟. No doubt, Government exchequer cannot be allowed to suffer, however, equally also the law of this country cannot be thrown to the winds just because the appellant is a Government department. In fact, the appellant must take action against all its officers in the complete chain who have caused passing of the ex-parte decree against the appellant/defendant instead of the appellant/defendant trying to wish away the delay and gross negligence
FAO No. 279/2017 Page 7 of 8
caused not only in filing of the written statement but also the filing of the application under Order IX Rule 13 CPC.
judgment.
JULY 5, 2017 VALMIKI J. MEHTA, J AK
FAO No. 279/2017 Page 8 of 8
3 issues framed by the court
Whether sufficient cause was shown for condoning the delay in filing a written statement and setting aside an ex-parte decree and order closing right to file written statement.
Whether delay of over two years in filing written statement and subsequent application to set aside ex-parte decree is condonable.
Whether the first appeal against the dismissal of the application to set aside the ex-parte proceedings should be allowed.
2 provisions across 1 enactments
UNION OF INDIA
M/S J W T
VALMIKI J. MEHTA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
