Prem Nath Monga Foods and Beverages Pvt. Ltd. vs Jainco Industries and Others

Lokeshwar Prasad, J.

(1) This order will dispose of an application filed on behalf of the defendants under Order Ix, Rule 7 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ''the CPC'').

(2) The facts relevant for the disposal of the above mentioned application lie in a narrow compass. The plain tiff has filed the

(3) The defendants have filed the above mentioned application with a prayer that ex-parte proceedings initiated against the defendants vide order dated 22nd January, 1996 be set aside and the defendants be given the opportunity to file the written statement and to contest the case on merits.

(4) Reply to the above mentioned application has been filed on behalf of the plaintiff. In the reply filed on behalf of the plaintiff, it has been stated that the defendants have been adopting dilatory and evasive tactics merely to prolong the litigation and die non appearance on the part of the defendants is deliberate and intentional and not due to any inadvertent mistake as alleged or otherwise. It has been stated in the reply that the application deserves to be dismissed with costs.

(5) I have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. During the course of arguments, the learned Counsel for the applicants/defendants submitted that the non appearance on the part of the defendants on the date(s) fixed was neither deliberate nor intentional but was due to inadvertent and bona fide mistake on the part of the Counsel for the defendants. He referred to the various contentions made in the application and also to the contents of the supporting affidavit filed in support of the application. On the other hand, the learned Counsel for the plaintiff (non applicant) submitted that there was no force in the contentions of the learned Counsel for the applicants/defendants and the present application is yet another attempt on the part of the defendants to delay the matter. The learned Counsel for the non- applicant/plaintiff while arguing the case submitted that the applicants/ defendants have to show not only ''good cause'' but ''sufficient cause'' within the meaning of Order Ix, Rule 13, CPC as there is no material difference between the two. While making his above submissions, he placed reliance on a decision of the Supreme Court in case Arjun Singh Vs. Mohindra Kumar and Others, .

(6) As per settled law, the Courts should be liberal in construing the above rule and should not take a stringent view of defendant''s absence. The provisions of Order Ix more particularly Rule 7, CPC are never meant to be penal provisions and it is only in clear cases of gross, negligence and misconduct that a party should be deprived of the opportunity of having a satisfactory disposal of the case which evidently can only be done when both the parties have full opportunity of placing their case and their evidence before the Court. This Court in case Delhi Development Authority Vs. Shanti Devi and Another, have held that where the Counsel for the defendants Along with an application under Order Ix, Rule 7 filed his own affidavit that he was busy in his personal matter and Therefore he could not attend the Court at the time when the suit was called by the Court and also stated that when he reached the Court at 10.55 a.m. he came to know about ordering of ex-parte proceedings, the order proceeding ex-parte would be liable to be set aside, as there was ''good cause'' for the absence of the Counsel. In another case, M.R. Singh v. Smt. Shyam P. Tiwari reported as (1989) 3 Del law 434 it has been held by this Court that the words '' good cause'' occurring in this rule, should be liberally construed in order to advance the cause of justice rather than to thwart it by permanently precluding a party from defending the suit merely on account of non-appearance of his Advocate on a particular date.

(7) In the present case from the contents of the application, which is duly supported by an affidavit, it is apparent that the default in not appearing on the date(s) fixed for hearing is on the part of the Counsel for the defendants. Ms. Anjali Chugh, the learned Counsel for the defendants has gone to the extent of filing her own affidavit in support of the application. In case Arjun Singh Vs. Mohindra Kumar and Others, and relied on by the learned Counsel for the non-applicant/plaintiff, their Lordships of the Supreme Court have simply observed that there is no material difference between the facts to be established for satisfying the two tests of ''good cause'' and ''sufficient cause''. Their Lordships in the above noted case have further observed that if on the other hand there is any difference between the two, it can only be that the requirement of ''good cause'' is complied with on a lesser degree of proof than that of ''sufficient cause''.

(8) The trial in the present case is in the initial stages. Even the written statement has not been filed. Thus, in my opinion, no prejudice is going to be caused to the plaintiff/non-applicant if the prayer made by the applicants/defendants is allowed. However, for the inconvenience caused to the non-applicant/plaintiff, the same can be compensated by way of costs.

(9) In view of the above discussion, the application is allowed . Ex-parte order dated the 22nd January, 1996 against applicants/defendants 1 and 2 is set aside subject to payment of costs. Costs fixed Rs. l,000.00 (Rs. one thousand only) in respect of each defendant payable to the plaintiff.

(10) THE application stands disposed of in above terms.