RAMON SERVICES PRIVATE LIMITED Vs. SUBHASH KAPOOR

JUDGEMENT

(1.) Mahabir Pershad Singh Vs. Jacks Aviation: 1998 RLR (SC) 644. The present appeal arises out of order dated 3.4.1999 passed by Additional District Judge in Suit No. M-148/1998. The respondent filed the aforementioned suit seeking for a decree for eviction. In the said suit issues were framed on 8.5.1998 and the suit was directed to be listed on 26.8.1998 for recording evidence of the plaintiff. On 26.8.1998 suit was ordered to be proceeded ex parte as against the defendants and was listed on 14.9.1998. However, on that date also no steps were taken by the defendants. Subsequent thereto an application was filed under Order 9 Rule 7 of the Code of Civil Procedure which was dismissed on 13.10.1998 and thereafter the trial court decreed the suit on 13.11.1998. The defendants thereafter filed an application under Order 7 Rule 13 of the Code of Civil Procedure praying for setting aside ex parte judgment-decree dated 13.11.1998. In the said application, a copy of which is placed on record, it was stated by the defendants that the defendants were advised on 24.8.1998. by their counsel telephonically that due to Delhi Bar Association resolution none of the advocates would beappearing in the matter. It was averred that as the defendant is based in Mumbai they failed to attend the matter on 26.8.1998 when the suit was directed to be proceeded ex parte and then the evidence of the plaintiff was recorded and the suit was directed to be listed on 14.10.1998. It is stated that although the Director of the Company came to the court on 14.9.1998 he was informed that the matter was listed only for orders and accordingly the Director returned to Mumbai after appointing Mr. Balbir Singh as attorney to conduct the matter on behalf of the defendant. The said attorney enquired about the matter and inspected the file on 9.10.1998 and then moved an application under Order 9 Rule Civil Procedure Code which was dismissed as not maintainable on 13.10.1998 and the judgment and decree was made on 13.11.1998 and accordingly the aforesaid application was filed in the suit for setting aside ex parte judgment and decree.

(2.) The said application was contested by the plaintiff contending inter alia that there was no sufficient cause for the defendants for their non-appearance on 26.8.1998. It was further contested on the ground that the tenanted premises in respect of which the suit is instituted is in Delhi and the defendant also claims to have an office in Delhi having staff to look after it. The Additional District Judge considered the aforesaid application and by the impugned order dismissed the said application holding that no bonafide and reasonable ground has been put forward by the defendants or their counsel for non-appearance on 26.8.1998.

(3.) I have heard Ms. Salwan appearing for the appellant and Mr. Makhija appearing for the appellant and Mr. Makhija appearing for the respondents. Ms. Salwan submitted that the trial court committed an error inholding that several lawyers were representing the defendants, for all the counsel who have signed the Vakalatnama belong to one legal firm. She also submitted that there was only one single default on the part of the defendants/appellants i.e. on 26.8.1998 and that for such one single default such harsh action was not called for. She also submitted that in view of the boycott call given the Bar Association, counsel could not appear before the court and therefore, the client should not bepenalised for the fault the counsel.