MADHURIKA SHARMA Vs. BHAGWATI DEVI SHARMA

JUDGEMENT

(1.) CM No. 14285/2011 (exemption) in CM (M) No. 885/2011 Exemption allowed subject to just exceptions. CM (M) No. 885/2011 The order impugned before this court is the order dated 29.03.2011 had dismissed the application filed of the defendants under Order IX Rule VII of the Code of Civil Procedure (hereinafter referred to as the Code). This application had been filed by the defendant Nos. 7, 8, 10 and 11; by way of this application defendant Nos. 7, 8, 10 and 11 had sought setting aside ex parte order dated 05.07.1999. This application had been filed after about ten years. Contention in this application is that the applicants/petitioners were housewives and defendant Nos. 7 and 10 are resident of Rajasthan, defendant No. 10 is a resident of Rohini, Delhi and defendant No. 11 is a resident of UP; The applicants had engaged Mr. T.C. Gupta for defending their suit. They were not aware that the suit was not being prosecuted diligently; in fact, an application had been filed by their advocate Sh. Alok Kumar to set aside the ex parte order dated 19.02.2008; this was in mistake that the ex parte order was of 19.02.2008 whereas the ex parte order had been passed actually on 05.07.1999. It was only after the petitioners have obtained certified copies of the subsequent orders and engaged another counsel Sh. Man Mohan Swaroop, these facts came to light; thereafter, the present application has been filed.

(2.) The impugned order had noted that there was a gap of about almost ten years in preferring this application for setting aside ex parte order which was passed on 05.07.1999. The only defence of the petitioners is that the petitioners are housewives and they were not aware of the proceedings; even this is presumed to be a correct fact, it does not take away the duty which is cast upon a litigant to prosecute his case diligently. Record shows that as per the statement of the petitioners, they had engaged three counsel but what did the petitioners do to follow up their case remained unexplainable and unanswered. A litigant after engaging a counsel is also supposed to follow up his case with his lawyer; he cannot be abdicated from his responsibility merely because he has engaged an advocate. The impugned order had correctly noted that there was no justifiable reason for this long delay of ten years; the application under Order IX Rule VII of the Code had accordingly been dismissed. Relevant would it be to note that on an earlier date i.e. 18.09.2008, an application under Order IX Rule VII of the Code had been filed which was dismissed on 12.08.2010; this application had sought to set aside ex parte order dated 19.02.2008 whereas the record shows that the ex parte order had been passed on 05.07.1999. Facts have been noted by the trial court in the correct perspective.

(3.) Impugned order suffers from no infirmity; petition is dismissed.