Delhi High Court
In Re: Virender Pal Singh Jolly vs Unknown on 31 May, 2004
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT
Vikramajit Sen, J.
1.This Revision discloses the manner in which the justice delivery system can be crippled by the adoption of dilatory devices which can succeed only because the system is bursting at the seams owing to the perennial shortage of judicial officers. A change in the mindset is essential and unavoidable and the affliction of showing leniency towards the party adopting delaying tactics calls for a paradigm shift so that this malaise can be put to a swift and clinical death.
2. In the present case the Revisionist/Plaintiff had filed a suit for recovery of Possession and Mesne profits almost fifteen years ago. The Written Statement was filed by the Defendant/Respondent in on 18.7.1988. This would have entailed the appointment of a pleader under Order III of the Code of Civil Procedure which enjoins the Advocate to appear in the case till his Vakalatnama is permitted to be withdrawn by specific orders of the Court. The frequent occurrence of Advocates choosing not to appear in cases on any ground is leading to a break down of the system. In the present case it has been stated that the Defendant/Tenant had taken away the file from his Advocate. This is not a sufficient reason for the Advocate to discontinue appearing before the Court. It is mandatory that leave or permission of the Court should be obtained for which a pre- condition is the issuance of a notice to the client/litigant which ought to ensure his presence in Court simultaneous wit the grant of leave to the Advocate to withdraw from the case. Once a party is served it may be unnecessary to serve him once again since he is obliged to appear at every hearing either personally or through his Advocate and/or representat have. Since our judicial system considers it an abhorrence to decide a case in the absence of a party, it oftentimes punctiliously conforms to procedure, even where it is obvious that the delinquent party is abusing this judicial concern. The laintiff in the present case has been allowed permission to sue as an indigent person which leads to the assumption that he did not possess the wherewithal to counter dishonest tactics of a Defendant who will obviously be benefited from any delay in he disposal of the suit.The suit had been filed in September 1987 and the Written Statement was filed one year later. Unfortunately for the Plaintiff within another one year thereafter the suit was transferred to this Court. Parties were directed to appear on 8.8.1989
3. The Defendant did not appear and as a result this Court, in its anxiety to conform to procedural demands, issued summons to the Defendant on several occasions. This was done despite the fact that the defense of the Defendant in the form of his Written Statement had already been placed on the record through his duly appointed Advocate. Whilst a litigant may not possess requisite knowledge and expertise for tracing the movement of a case in Court this disability certainly does not apply to an Advocate. The Defendant’s Advocate was, therefore, duty bound to appear on the adjourned dates for fear of being charged with and held accountable for dereliction of duty. Litigants would be justified to initiate action against their Advocates either before the Bar Council or by filing claims for damages for such lapses.
4. Summons could not be served for the second time around on the now forewarned and therefore elusive Defendant in August, 1989, September, 1989, December, 1989 and yet again in February, 1990. A lady, presumably the Defendant’s wife, presumably the Defendant’s wife, present at the address had stated that the Defendant had gone out of station. The CPC envisages that notices can properly and efficaciously be served not only on his Advocate/Agent but also on any adult member of the family.
For inexplicable reason this presumption has not been drawn against the Defendant. There is a report of the Process Server, in February, 1990 that the Defendant was out of station. It cannot be denied that the Summons had been dispatched to the roper address of the Defendant. The records disclose that summons/notice was affixed at the Defendant’s address in December, 1990. Substituted service through publication in the `Statesman` was effected in January, 1991, which was in addition of service Under Postal Certificate. Finally, after over two years had elapsed since the filing of the Written Statement, the Defendant was set ex parte on 10.2.1992.
5. It will be recalled that the Plaintiff had been granted leave to file a suit in proforma pauperis but court fees had been paid in August 1992, presumably to remove any challenge on this ground to the decreeing of the suit. Unfortunately for the Plaintiff, the suit came to be transferred from the High Court to the District Court because of changes brought to the pecuniary jurisdiction of the respective Courts. This has led to the issuance of summons once again in September, 1992 in which the endorsement on the Process was that the Defendant was only occasionally present at the given address. One year later on 16.8.1993 the summons were served on the Defendant’s Advocate, namely, Goel and Company. At that point in time Shri D.P. Goel, Advocate had informed the Process Server that the Defendant had taken the file back. Even if this was so, it did not absolve the person whose Vakalatnama was on record of the duty to appear in the Court on the next date of hearing. The apless Plaintiff had, for the second time, to go through the process of effecting substituted service through publication in June, 1994. Thereafter there are reports of the Process Server in February and June, 1996 that the Defendant had refused to take summons. Eventually a decree came to be passed on 27.11.1997. One can only wonder why so much time and effort was wasted on ensuring the presence of a party who was obviously and palpably delaying the proceedings, in circumstances where that party had already been set ex parte several years ago. The Court has to be extremely gullible to believe that the Defendant was not watching the proceedings on each and every date after he had been initially served and specially after filing of the Written Statement.
6. In February, 1999 the Defendant/Judgment Debtor filed an application under Order IX Rule 13 of the CPC stating, inter alia, that because of the death of his Advocate he could not pursue the litigation. In spite of the appalling and disturbing delay that had resulted till that date, the Defendant did not file an application for condensation of delay. On 23.2.2001 Ms. Pratibha Rani, Learned Additional District Judge, Delhi dismissed the application under Order IX Rule 13 of the CPC. The Defendant filed a Revision which came to be allowed on 1.2.2002 and the Trial Court was directed to decide the application under Order IX Rule 13 after giving the parties an opportunity of leading evidence. The application which had been dismissed(sic)a detailed and reasoned order passed by Learned ADJ has now been allowed by the Civil Judge in terms of the impugned Order dated 2.7.2002. The Learned ADJ had observed that the Defendant’s explanation pertaining to the death of Shri N.L. Goel was legally unacceptable since that event had occurred in 1990 but despite the passage of several years the Defendant had taken no steps to pursue the case. The Learned ADJ had also observed that Shri D.P. Goel had been conducting the case on behal of the Defendant but no satisfactory reasons were forthcoming for his failure to perform the duties that were expected of him. The Learned ADJ correctly opined that there was negligence on the part of the Advocate.
7. The evidence of Shri Virender Pal Singh, Defendant/Respondent, was recorded on 18.3.2002. In his Examination-in-Chief he has stated that he visited the office of Mr. Goel, who was his counsel since 1987, and came to know of his demise. He there upon engaged “Mr. Wadhwa” and the application under Order IX Rule 13 was thereafter filed. In his Examination-in-Chief the Defendant has sought to introduce facts which had not been mentioned mentioned in application under Order IX Rule 13 of the C The Trial Court adopted a sound and pragmatic approach in allowing these statements so that the case may progress. The Defendant has stated that he had no knowledge of service through publication in the Statesman in 1991 and/or in 1994. In is Cross-Examination he was confronted with the Vakalatnama which he had signed and has evaded the question that it was signed by Shri D.P. Goel also. It had been put to him that Shri D.P. Goel had identified him in connected proceedings and that he did not go to his Advocate to enquire about his case after 8.8.1989. He had admitted that the address on which summons had been dispatched on so many occasions was correct and that his wife was residing there. Significantly he has stated that he did not collect the file from his lawyer, Goel and Company. This Court must assume that either the Advocate’s endorsement and response to the Process is false or that the Defendant has committed perjury.
8. The Civil Judge had come to the conclusion in the impugned Order dated 2.7.2002 that the Defendant/Judgment Debtor had signed the Vakalatnama in which the names of three Advocates S/Shri N.L. Goel, D.P. Goel and S.C. Ranjan were mentioned and that the Written Statement had also been signed by Shri D.P. Goel. The Civil Judge has also returned a finding that the case was not listed in the High Court on 8.8.1989 when the Respondent is stated to have made enquiries in this Court. Even if late Shri N.L. Goel had passed away, no valid and acceptable reason is forthcoming for the absence of Shri D.P. Goel and Shri S.C. Ranjan. The conclusion of the Civil Judge is that this discloses the the Defendant’s knowledge of the proceedings. The Civil judge has also opined that what is relevant is whether the Defendant had knowledge of the pendency of the proceedings after 21.7.1992 or whether he was avoiding Process.
9. However, the observation of the Trial Court to the effect that the `Statesman` does not have wide circulation and that benefit should be given to the Defendant on this ground cannot be sustained. It needs to be underscored that publication has been carried out in proceedings subsequent to the filing of the Written Statement. Rather than embarking upon the question of whether the `Statesman` has a wide circulation or not, the Trial Court should have been more mindful of the fact that the defendant was fully aware of the pendency of the proceedings and had even filed a Written Statement. He should have also not lost sight of the fact that the Defendant had been proceeded ex parte. The correct approach was to consider only whether the Defendant or his Advocate had been diligent in prosecuting the case. In this regard the Trial Court held that there is an absence of diligence, that the Deceased Advocate was not the only Advocate retained by the Defendant. The Trial Court has knowledge of the pendency of a legal proceedings, and has also been set ex parte. Procedure is only a handmaid to justice and cannot be allowed to hold justice to ransom. Clearly, a grave miscarriage of justice has resulted from the misplaced, unjustified and wholly unwarranted sentiments of holding that the “J.D. Deserves some mercy from this Court.” There is no scope for these sentiments, especially in the facts of this case.
10. This petition discloses an incorrect exercise of jurisdiction. It is not open to a Civil Judge to show `mercy` to a litigant who is palpably delaying proceedings for several years. There can be no controversy that the Defendant had actual knowledge of the filing of the suit for possession and mesne profits since he had already filed his Written Statement. Process had repeatedly been issued from time to time and ought to have been held to have been served on the Defendant through a female member of his family, even after he was set ex parte. Before showing `mercy` to the Defendant the Trial Court should also have kept in perspective the fact that the application for setting aside ex parte orders had been dismissed. What the defendant has successfully achieved is excruciating delay in the decision of the case and the execution of the decree and this is nothing but an abuse of judicial process. The impugned Order is set aside and the application under Order IX Rule 13 of the CPC is dismissed. The manner in which the Defendant has succeeded in delaying proceedings cannot but shock the conscience of this Court. The Revision is allowed with costs of Rs. 25,000/-, to be paid within thirty days from today, of which Rs. 1,000/- shall be deposited in the Prime Minister’s Relief Fund.