MADHUSUDHAN INDUSTRIES LIMITED Vs. RAJESH ARORA

JUDGEMENT

(1.) This suit is filed for recovery of Rs. 19,37,589.00 underOrder XXXVII of the Code of Civil Procedure. Summons in Form No. 4 of AppendsB, directing the defendants to enter appearance within ten days from the date ofservice were admittedly served on the defendants on 25.10.1996 but appearance wasentered on their behalf only on 21.12.1996.Simultaneously I.A.178/97hasbeenfiledby them under Section 5 of the Limitation Act read with Order XXXVII, Rule 3(7)of the C.P.C.

(2.) The case made out for condoning the delay in entering appearance is thatdefendant No. 1 was admitted in hospital between 26.10.1996 and 28.10.1996, andwas advised complete bed rest as he was suffering from various other ailments.Medical Reports and Certificates have been filed. It has been further stated thatdefendant No. 2, being a housewife, attended to only household chores and "is notof any assistance to defendant No. 1 for field works". Defendant No. 1 had contactedhis Counsel on 29.10.1996 but could not keep his appointment for 1.11.1996 due tothe dislocation of his knee on 30.10.1996. In paragraph 4 of the application it has beenstated that "the necessary papers regarding the matter were sent by the defendantNo. 1 to his Counsel through his domestic help. Interim present Counsel handedover to the said domestic help a Vakalatnama which was to be signed by thedefendants." This Vakalatnama was thereafter sent. No explanation has beenpreferred for not taking requisite action in the period presumably commencingfrom 1.11.1996 upto 18.12.1996 on which date the defendant No. 1 is stated to havebecome well enough to move about. It has been further stated in the application thathe contacted his Counsel on the evening of 20.12.1996. On these facts it is pleadedthat the delay of the defendants in not putting appearance within ten days of service,i.e. by 5.11.1996, was totally unintentional and for bona fide reasons.

(3.) From a perusal of the Court Records, it transpires that the defendants'Advocate had inspected them on 19.11.1996 and 12.12.1996. No explanation hasbeen given for the non-disclosure of these facts which are germane to the issues nowbeing canvassed in Court. Failure to plead and explain these relevant facts cannotbe ignored, and it is not a satisfactory answer that these facts have been stated in theRejoinder to the application that is, after an objection to this effect had been takenby the plaintiff. The hospital is ation of the defendant No. 1 between 26th to 2 8/10/1996, and the subsequent alleged dislocation of the knee and other ailmentscannot be considered as an obstacle or deterrence in appearance being entered onbehalf of defendants. This action did not require or entail the presence of either ofthe defendants. The averments in the application itself show that defendant No. 1had contacted his Advocate within time and had even furnished a Vakalatnama.No justifiable reason has been given for the non-compliance of simple formality ofentering appearance. Had these reasons been given for the condonation of delay infiling an application seeking leave to defend, it would perhaps have carried someweight, since the presence and briefing of the defendants would then have beencalled for. Learned Counsel for the defendants could not controvert that thepersonal attendance of the defendants was not required at the stage of enteringappearance, as envisaged in Order XXXVII of the C.P.C.