SHANTI DEVI Vs. RAMESH KUMAR GUPTA

JUDGEMENT

(1.) The Plaintiff has filed the present application under Order IX Rule 4 read with Section 151 of the Criminal Procedure Code on behalf of the Plaintiff. The suit was dismissed in default on 31/7/2000 because of the non-representation of the Plaintiff. While dismissing the suit in default I observed that the Plaintiff had admittedly executed four Sale Deeds in favour of the Defendants, who are her son, daughter-in-law and Grandson for the sale consideration of Rs. 6,00,000.00, through banking channels. On the previous date of hearing, previous to when the suit was dismissed i.e. on 11/7/2000, the case was adjourned so as to enable the Learned Counsel for the Plaintiff to obtain instructions on whether the Plaintiff would appear before the Court. This order had been necessitated because of the Defendants' assertion that the Plaintiff was now residing with the elder brother of Defendant No. 1 and her signatures had not been obtained on the Plaint with her consent and complete knowledge. The Defendants were fully represented on 31/7/2000 when the case was dismissed. Although Rule 4 of Order 9 which has been invoked by the Plaintiff/Applicant, is clearly not applicable, in the interest of justice I have treated the application under Rule 9 of the said Order.

(2.) The case made out by the Plaintiff is that by a mistake on the part of the Counsel for the Plaintiff the date of hearing of 31/7/2000 was not posted in his diary nor had he informed the Senior Advocate about this date. It is stated that "the matter came to light on going through the cause list, late in the evening on 31/7/2000 itself." It has further been alleged that the Counsel for the Plaintiff was appearing in Court No. 23 on 31/7/2000 and had the matter come to his knowledge, would have definitely appeared in the matter. Mr. U.K. Chaudhary, Learned Senior Counsel appearing for the Plaintiff, has reiterated these grounds in his arguments. In respect of the Plaintiff, it has been alleged that she is an old and infirm lady and has no defaulted wilfully. A Medical Certificate date 14/7/2000 to the effect that she cannot walk and unfi to travel to Delhi has been filed. The veracity of this certificate has been vehemently assailed by Learned Counsel for the Defendants.

(3.) Mr. Bansal, Learned Senior Counsel appearing for the Defendants, has argued that the Application is mala fide and is liable to be dismissed on the facts disclosed therein. His first contention is that the application has not been signed by a duly authorised person inasmuch as there is no Vakalatnama in favour of Mr. Rajiv Kumar, Advocate and neither the Plaintiff nor any of her duly authorised persons has signed it. He has next contended that the affidavit of Mr.'Rajiv Kumar, Advocate, is of little help to the Plaintiff since apart from the factum of his not having been authorised to appear for the Plaintiff, he was not present on 31.7.2000 as is borne out from the Orders itself. He has also stated that the Plaintiff ought to have filed a copy of his Diary in order to substantiate the contentions. Thirdly, it has been argued that even if it is accepted that next date was not noted in the case diary, since instructions had allegedly been received by the Plaintiff and/or her alleged constituted attorney, shortly before 31/7/2000, the counsel ought to have appeared even though the case had not been transferred into Court Diary. Fourthly, he had submitted that there was inexcusable negligence on the part of the Plaintiff's Counsel inasmuch as the Cause List had been looked into only late in the evening of 31.7.2000. Finally, it was asserted that the Plaintiff was well enough to appear personally before this Court the veracity of the Medical Certificate has been assailed. Also keeping in view the fact that it was she who had filed the case in this Court, she was under a special legal obligation to appear whenever directed to do so.