DAYA INDUSTRIES Vs. SARDAR JASWANT SINGH

JUDGEMENT

(1.) This is an application filed on behalf of SardarJaswant Singh(hereinafter referred to as the respondent) under Order 9 Rule 13 read with Section151 of the Code of Civil Procedure and in this application it has been prayed thatex-parte order dated 13/11/1991 passed by this Court be set-aside andthe respondent be allowed to file the affidavit by way of evidence. Notice of thisapplication was issued to the petitioners and the petitioners in their reply dated 15/01/1992 have controverted the averments made in the application.

(2.) Mr. Manmohan Singh, learned Counsel appearing on behalf of the respondent/applicant submitted that the respondent had engaged Shri 0.P. Sharma,Advocate in this case and it was because of negligence on the part of the saidAdvocate that the respondent was directed to be proceeded against ex-parte videorders dated 15/03/1991 and thereafter since the said Advocate did notappear on behalf of the respondent, an ex-parte order was passed by this Court on 13/11/1991 whereby the petition was accepted and the design bearingNo.158951 in Clause I dated 16/05/1988 was ordered to be cancelled. Thelearned Counsel submitted that the respondent should not be allowed to suffer forthe inaction or omission on the part of his Advocate. In support of his contention,learned Counsel placed reliance on a judgment of the Supreme Court in the case ofRafiq & Anr. v. Munshilal & Anr, AIR 1981 SC 1400.

(3.) Mr. Aggarwal, learned Counsel appearing on behalf of the petitioners /non-applicants, however, submitted that in the present case the respondent and hisCounsel both have been negligent right from the initial stage of the case and theapplicant had failed to show that there was sufficient cause for the non-appearanceof the respondent and his Counsel on a large number of hearings. He submittedthat the present case was not one of those cases where it could be said that therespondent was an innocent person having suffered merely because his Advocatedefaulted. He further submitted that in the present case the impugned order dated 13/11/1991 had been passed on merits. He, therefore, contended that theapplication was without any merit and be dismissed with costs. In support of hiscontention, learned Counsel placed reliance on ajudgement of this Court in the caseof Gloria Chemicals v. RK. Cables & Ors., AIR 1988 Delhi 213.