Dismissed

Hajari Lal v. Govind Prasad

Rajasthan HC18 Jan 2024CMA/745/2020

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed an appeal against an order rejecting an application to set aside an ex parte decree. The court held that mere allegations of lawyer negligence without proof of inaction or a complaint to the Bar Council were insufficient to justify setting aside the decree, especially given the defendant's significant delay in approaching the court.

What the court decided

AI extract

Hajari Lal Vs Govind Prasad — Civil Procedure and Limitation | Rajasthan HC (2024)

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[2024:RJ-JD:2847]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 745/2020

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Hajari Lal S/o Moti Gurjar, Aged About 61 Years, R/o Khajuriya Khedi Teh. Nathdwara, Distt. Rajsamand (Raj.)

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----Appellant

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Versus

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Govind Prasad S/o Damodarlal, C/o Govind Kirana Merchant, Main Bajar, Fatehnagar, Teh. Mavli, District Udaipur (Raj.)

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----Respondent

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For Appellant(s)

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: Mr. Digvijay Singh Chouhan for Mr. Anuj Sahlot

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HON'BLE MS. JUSTICE REKHA BORANA Order

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18/01/2024

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The present appeal has been preferred against the order dated 22.11.2019 passed by the Additional District Judge No.1, Udaipur, Camp Mavli in Civil Case No.25/2018 (CIS No.143/2018) whereby the application under Order 9 Rule 13 read with Section 151, CPC as preferred by the defendant has been rejected.

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The application under Order 9 Rule 13, CPC was preferred to get the ex parte decree dated 10.03.2017, for recovery of an amount of Rs.2,90,440/- as passed against the defendant, set aside.

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The case of the defendant was that he did appoint a lawyer to represent him but he neither put in appearance regularly nor did he inform the defendant about the further dates in the matter. The defendant was not even informed by the counsel about the ex parte decree dated 10.03.2017 as passed against him. It is only through the Court that the defendant came to know about the passing of the said decree and pendency of the execution proceedings against him.

[2024:RJ-JD:2847]

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(2 of 5)

The learned Court below while rejecting the application, specifically observed that not a single fact as to when the information through the Court as alleged by the defendant was received by him, when the copies of the impugned decree/order/ordersheets were received by him, etc. had been averred. The Court further observed that in the execution proceedings as initiated by the plaintiff, the summons/process was directed to be issued only on 21.07.2018 and the appearance was given by the counsel on behalf of the defendant on 04.12.2018. Whereas, the application under Order 9 Rule 13, CPC was filed on 23.04.2018, much prior to that.

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Meaning thereby, the reason given by the defendant that he came to know about the impugned decree through the Court cannot be said to be correct as on 23.04.2018, the process of the execution proceedings had not even been served on the defendant. Further, even after the summons/process being issued on 21.07.2018 in the execution proceedings, the presence was given on 04.12.2018, which shows that the defendant very casually moved an application under Order 9 Rule 13, CPC and chose to wait for its decision and hence, did not put in appearance in the execution proceedings. The Court therefore, finding the reason as averred by the defendant to be incorrect, proceeded on to reject the application for setting aside of the ex parte decree, the same not being bonafide.

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Learned counsel for the appellant submits that the appellant was not informed about the ex parte decree by the counsel and he bonafidely, as soon as came to know about the ex parte decree, preferred the application under Order 9 Rule 13, CPC even before

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[CMA-745/2020]

(3 of 5)

the execution proceedings were initiated by the plaintiff. Learned counsel further submitted that only for the absence of the lawyer on a single date, the ex parte proceedings were initiated against the defendant and the Court proceeded on to pass the ex parte decree against him which deserves to be set aside.

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Heard learned counsel for the appellant and perused the impugned order dated 22.11.2019 as well as the impugned judgment and decree dated 10.03.2017 and the order sheets of the execution proceedings as furnished by learned counsel for the appellant.

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A perusal of the order sheets makes it clear that when the matter was posted for plaintiff’s evidence, learned counsel for the defendant submitted that the matter be posted for settlement as there are chances of amicable settlement between the parties. On the request of learned counsel for the defendant, the matter was posted for settlement on 09.02.2017 on which date none appeared on behalf of the defendant. Therefore, the Court on that date directed to proceed ex parte against the defendant. After 09.02.2017, on the next date i.e. 21.02.2017, the statements of PW-1 were recorded and when the plaintiff did not wish to lead further evidence, the matter was posted for final arguments on 10.03.2017, on which date after hearing the counsel, the impugned decree was passed.

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From the above order sheets, it is clear that it is not that the Court, on the same date of passing of the ex parte order, proceeded on to pass the ex parte decree. The ex parte decree was passed after more than a month’s time of 09.02.2017. The defendant did not choose to take any step during that period.

[2024:RJ-JD:2847]

[CMA-745/2020]

(4 of 5)

Further, the application for setting aside of the decree dated 10.03.2017 was filed on 23.04.2018, that is, after more than a period of one year. No plausible reason as to why no action was taken for the period of 09.02.2017 to 23.04.2018 has been furnished by the defendant. The only averment of the defendant that he was not informed by the counsel also cannot be held to be plausible as there is nothing on record to show that any action against the counsel had been taken by the defendant or any complaint had been field by him against the counsel to the Bar Council.

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The Hon'ble Apex court in the case of Basawaraj and Ors.

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Vs. The Spl. Land Acquisition Officer, (2013) 14 SCC 81,

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held as under:

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"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

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The Delhi High Court in the case of Moddus Media Pvt.

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Ltd. Vs. Scone Exhibition Pvt. Ltd. (Regular First Appeal

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No.497/2017) decided on 18.05.2017, held as under:

[2024:RJ-JD:2847]

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(5 of 5)

"11. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted."

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In keeping with the ratio as laid down in the above judgments, this Court is also of the specific opinion that a mere bald allegation on a lawyer cannot be a sufficient ground to set aside the ex parte order. It is very easy to lay allegation against the lawyer who is not before the Court to defend the same. As held time and again, a mere cursory allegation against a lawyer cannot be considered to be a plausible reason without there being any substantive evidence to prove the inaction/negligence on part of the counsel.

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This Court is of the clear opinion that the finding as arrived to by the learned Court below does not deserve any interference and hence, the present appeal stands dismissed .

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Stay petition and all pending applications, if any, stand disposed of .

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(REKHA BORANA),J

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145-KashishS/-

Hajari Lal v. Govind Prasad

Case brief

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Hajari Lal v. Govind Prasad

Case brief

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