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Judgment
Pradeep Nandrajog, J.—Yet another instance of callous drafting at the trial court level and an obstinate behaviour to persist with the wrong.
The result is that a valuable right of the client has been lost in the maze of technicalities of procedures of the law.
Oriental Insurance Company filed a suit against M/s. Citizen Chemicals & Transport Company. The said company was proceeded against ex-
parte. The ex-parte decree was passed on 20.8.2003. When the decree was put into execution an application under Order 9 Rule 13 CPC was
filed but by M/s. Citizen Chemicals & Transport Services. Since no decree was passed against M/s. Citizen Chemicals & Transport Services in
the reply to the application the plaintiff questioned the locus standi of the applicant pointing out that the decree was against M/s. Citizen Chemicals
& Transport Company and not against M/s. Citizen Chemicals & Transport Services.
The Counsel concerned persisted with the obstinate pleading. The application was dismissed on 10.12.2003 holding that since no decree was
passed against the applicant the question of the applicant seeking recall of the decree does not arise. Another application under Order 9 Rule 13
CPC was filed thereafter. This application was filed on 2.1.2004. The applicant of this application was the judgment debtor, i.e. M/s. Citizen
Chemicals & Transport Company Ltd.
An application u/s 5 of the Limitation Act was filed praying that delay in filing the application be condoned. With reference to the application
filed under Order 9 Rule 13 CPC at the first instance it was stated that the applicant was bona fide litigating under a different name.
The learned Trial Judge dismissed the said application vide impugned order dated 28.9.2004.
Reason given by the learned Trial Judge is that it was pointed out that M/s. Citizen Chemicals & Transport Services was not the judgment
debtor when earlier application was filed. The learned Trial Judge has noted that in spite thereof the Counsel persisted with the obstinate
behaviour. Learned Trial Judge has opined that under the circumstances M/s. Citizen Chemicals & Transport Company which was acting through
the living human being who had filed an earlier application would not be entitled to the delay being condoned.
Technically speaking, the view taken by the learned Trial Judge is correct. Once the judgment debtor was informed that the application for recall
of the ex-parte decree was not filed by the judgment debtor but by somebody else the judgment debtor ought to have taken corrective action.
Alas, nothing was done.
Having wasted judicial time and suffering dismissal of the application as not maintainable the second application was filed.
Though second application but would be the first application by M/s. Citizen Chemicals & Transport Company for the reason the earlier
application was filed by M/s. Citizen Chemicals & Transport Services.
The obstinate conduct of the Counsel should not visit the client with penalty.
The suit sought recovery of Rs. 4,39,809/- with interest @ 18%. The suit has been decreed on 21.5.2003.
I note that Rs. 98,603/- is the pre-suit interest.
To do justice to the appellant and cutting through the maze of the technicalities of the procedural law but at the same time keeping in view the
interest of the plaintiff I dispose of the appeal setting aside the impugned order and allowing appellant''s application under Order 9 Rule 13 CPC
but on terms.
Within 6 weeks from today appellant shall deposit Rs. 2 lacs with the learned Trial Judge which would be permitted to be withdrawn by the
plaintiff without any security.
On deposit of Rs. 2 lacs the suit would be restored and decided in accordance with law.
Needless to state, if the suit fails learned Trial Judge would order restitution.
Copy of this order be supplied dasti to Learned Counsel for the parties on payment of usual charges.