RSA No.4813 2009 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.4813 2009 Decided on: 10.05.2010 **** Kamlesh Bhargava Hospital & Research Centre Ltd., Silver Oaks, Hospital and another . . . .Appellants Versus Weather Maker Pvt. Ltd. Panchkula through its Managing Director . . . .Respondent **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Anand Chhibbar, Advocate for the appellants. Mr.Aashish Chopra, Advocate for the respondent/Caveator. **** RAKESH KUMAR JAIN, J. (ORAL) This appeal is directed against judgment and decree of both the Courts below whereby suit filed by the plaintiff –respondent herein for recovery of Rs.7,78,525/- together with interest @ 12% per annum from the date of filing of the suit till the date of decree was allowed along with the cost of the suit at the same time and counter-claim/set off set up by the defendant/appellant was declined. In brief, the facts of the case are that defendant No.1/appellant built a hospital at Mohali under the name and style of ‘Silver Oaks Hospital’ in which they required air conditioning. The RSA No.4813 2009 - 2 - work of air conditioning was entrusted to the plaintiff/respondent. The deal was finalized for a consideration of Rs.48,00,600/-. In pursuance of the order, the air conditioning plant was duly installed in the premises and was completed in the month of February 2000. During this period, the cost of installation, due to certain variations and additions, which were due to the extra work entrusted by the defendants to the plaintiff, escalated to Rs.53,13,700/-, as a result of which total amount payable by the defendants to the plaintiff after crediting all the payments earlier made was of Rs.9,24,925/-. Besides this the defendants were also required to pay a sum of Rs.54,000/- towards three months of operation and maintenance charges to the plaintiff. Thus, the total outstanding amount was Rs.9,78,925/-, out of which Rs.2 lacs was paid by the defendants and ultimately a sum of Rs.7,78,925/- was remained to be paid for which the present suit was filed. In the written statement, the defendant No.1 had admitted that the air conditioning plant was got installed through plaintiff, however, it was denied that any extra work was got done from the plaintiff for which they had asked for a sum of Rs.7,78,925/-. It is rather alleged that two units, one of 10 ton and other of 50 ton, did not work satisfactorily, since the time of commissioning and despite repeated requests was not repaired. Therefore, the defendants had to file a complaint before the State Consumer Commission, Punjab at Chandigarh. In the counter- claim/set off, it was claimed that defendant No.1 hired the services of other company/firm on which they had spent Rs.11,42,883/-. Thus, it was prayed that the said amount be also got returned from RSA No.4813 2009 - 3 - the plaintiff with interest @ 18% per annum. The plaintiff filed replication and reply to the counter-claim reiterating the stand taken in the plaint and controverting the averments made in the written statement. On 21.11.2005, learned trial Court framed the following issues: - “1. Whether the plaintiff is entitled for recovery of a sum of Rs.7,78,525/- together with interest @ 18% p.a. from the date of institution of the suit till the date of realization? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the present suit is not filed by the competent person/authority? OPD 4. Whether the plaint is liable to be rejected under Order 6 Rule 2 CPC? OPD 5. Whether the defendants are entitled for counter-claim as prayed for? OPD 6. Relief.” Plaintiff examined Arun Kumar as PW1, Manjit Singh as PW2. On the other hand, despite availing a number of opportunities, defendant failed to adduce any evidence as a result of which suit was decreed on 24.08.2006. Aggrieved against the judgment and decree of the trial Court, plaintiff filed appeal under Section 96 Code of Civil Procedure, 1908 (for short ‘CPC’) after a delay of 210 days. The delay was sought to be condoned by moving an application under RSA No.4813 2009 - 4 - Section 5 of the Limitation Act, 1963 but the learned First Appellate Court vide its judgment and decree dated 3.6.2009 not only rejected the plea raised by the appellants for condonation of delay but also dismissed the appeal on merits. Hence, the present second appeal has been filed. This appeal has also been filed with an application, namely, CM No.14312-C-2010 under Section 151 of the CPC for condonation of delay of 82 days in refilling of the appeal. In this appeal, the learned counsel for the appellants has submitted that the substantial question of law as envisaged under Section 100 of the CPC is “Whether the defendant/appellant can be made to suffer on account of the bonafide and unintentional mistake of his counsel in noting a wrong date of hearing of the case? In this case, the respondent is already on a caveat. Sh. Aashish Chopra has put in appearance on behalf of the caveator. Mr.Anand Chhibbar, learned counsel for the appellants has vehemently argued that on 7.4.2005 when the evidence of the defendants was closed by the learned Court below, the presence of the counsel for the appellants has been wrongly recorded in which it was mentioned as “counsel for the parties” whereas learned counsel for the appellant had wrongly noted the date as 8.4.2005 as a result of which he neither could put in appearance on behalf of the appellants on 7.4.2005 nor could inform his clients for the purpose of their evidence to defend the suit and to prove their cross- objection. It is submitted that immediately on 9.4.2005, Lalit Thakur, learned counsel appearing on behalf of the appellants/defendants filed an application before the Court concerned for recalling/setting aside order dated 7.4.2005 in which RSA No.4813 2009 - 5 - it was alleged that the date was wrongly noted, therefore, evidence could not be led. The said application was dismissed by the Court below vide its order dated 1.8.2006 observing that only course open to the appellant is to challenge the said order by way of revision. Learned counsel for the appellant has further submitted that the appellant filed a Civil Revision No.4425 of 2006 on 22.8.2006 but in that case no stay was granted by this Court and ultimately, the learned trial Court, without waiting for the result of the Civil Revision decreed the suit of the plaintiff on 24.8.2006. It is further submitted that the said revision petition became infructuous and was got dismissed as withdrawn on 22.5.2007. Insofar as the delay of 210 days in filing of the first appeal is concerned, it is submitted that the appellants has been waiting for his revision petition to be decided as he had gone to a wrong Forum, therefore, the time spent before this Court in Civil Revision, deserves to be excluded in terms of Section 14 of the Limitation Act, 1963 and if that is considered, then there was no delay in filing of the appeal. In nutshell, learned counsel for the appellant had earnestly prayed that if one opportunity is granted then the appellants would lead their entire evidence. It is also submitted that the plaintiff can be compensated with heavy costs. He relies upon a decision of the Supreme Court in the case of “The State of West Bengal Versus The Administrator, Howrah Municipality and others etc.” AIR 1972 Supreme Court 749 for the purpose of seeking condonation of delay in filing of the first appeal. On the point of the lapse on the part of the counsel, learned counsel for the appellant has relied upon a decision of the Supreme Court in the case of “Rafiq and another Versus RSA No.4813 2009 - 6 - Munshila and another” AIR 1981 Supreme Court 1400. He also relied upon another judgment of the Supreme Court in the case of “Smt. Rani Kusum Versus Smt. Kanchan Devi and Ors.” JT 2005(7) Supreme Court 409. On the other hand, learned counsel for the respondent has argued that conduct of the defendants is totally contumacious because they did not care to lead the evidence despite availing several opportunities. Even on 10.3.2005, the Court had taken an undertaking from learned counsel for the defendants that he would lead evidence on the adjourned date but despite that the said opportunity was not availed. Therefore, there is no fault in the order of the Court in closing defendants’ evidence. It is further submitted that insofar as the application dated 9.4.2005 is concerned, even that application has not been pursued by the defendants/appellants, as it is apparent from the order, which is available in the memo of appeal, which reads that no one was present to argue the application. It is further submitted that the revision petition filed before this Court came up for hearing on 24.8.2006, which was adjourned sine die because the appellant did not produce certified copies of Annexure P-1 to P-4 and thus application was declined by this Court. Thereafter, the case was listed for hearing on 23.11.2006 after filing the application dated 21.11.2006 for placing on record certified copies but in the meantime, the period of limitation for filing even first appeal had expired. Learned counsel for the respondent has also argued that there is a lapse on the part of the defendants/appellants at all stages of the suit and even in the appeal as he was unnecessarily RSA No.4813 2009 - 7 - waiting, as alleged, for decision of the revision petition and could have challenged the order passed by the Court below in the appeal itself. I have heard both the learned counsel for the parties and perused the record with their assistance. Before recording my findings, it would be appropriate to sum up the aforesaid facts. 1. The orders of following three dates are relevant to be noted: “i) Present: Counsel for the parties. No DW is present. Ld. cl. For the defendant prayed for adjournment which is granted. Now, the case is adjourned for 31.1.2005 for entire DWs at own responsibility? Sd/- CJ(JD)/21.12.04 ii) Present: Counsel for the parties. No DW is present. On request of ld. cl. for defendent, the case is adjourned for 10.3.2005 for entire DWs at own responsibility being last opportunity? Sd/- CJ(JD)/31.01.05 iii) Present: Counsel for the parties. RSA No.4813 2009 - 8 - No DW is present. On written undertaking of ld. cl. for the defendant, last and final opp. Is granted for 7.4.2005 for concluding entire DWs at own responsibility. No further date will be given. Sd/- CJ(JD)/10.3.2005" 2. On the adjourned date i.e. 7.4.2005, following order was passed. “Present: Counsel for the parties. No DW is present today despite being last opportunity. As such evidence of the defendant stands closed by order of the Court. Now the case is adjourned 15.4.2005 for arguments. Sd/- CJ(JD)/7.4.05” 3. That the application dated 9.4.2005 filed by the defendants for recalling/setting aside the order dated 7.4.2005 was disposed of by the learned trial Court on 1.8.2006 with the following order: - “Present: Counsel for the plaintiff. None for the defendant. RSA No.4813 2009 - 9 - None has come present to argue their application U/s 151 CPC for review of order dated 7.4.2005. 2. The application and reply are already on file. This application can well be disposed of without the assistance of the applicant, U/o 17 Rule 2 CPC. 3. I have gone through application and reply. No doubt, vide order dated 7.4.2005 the evidence of the defendant was closed by order but the order quoted by the defendant in his application does not tally with the order of the judicial file. Only the defendants can explain why the different order has been put forward. 4. Even on merits, the application is not maintainable. My ld. Predecessor on 7.4.2005 has passed the substantive order. There is no mistake apparent on the face of record. Therefore, this order cannot be reviewed at all. That was revisable order only, therefore, application has got not merits and hence, dismissed. 5. Now to come up for arguments on 3.8.2006. Sd/CJ(JD)/1.8.06” RSA No.4813 2009 - 10 - On 12.8.2006, following order was passed: - “Present: Sh. Pradeep Bedi, cl. for the plaintiff. Sh. Anand Chhiber, cl. for the defendant. In view of the application filed, adjourned to 23.8.2006 for arguments with clear warning that in case of no stay granted by the High Court, arguments will be heard. Sd/CJ(JD)/12.8.06” On 24.8.2006, following order was passed by this Court” “Present: Mr.Anand Chhibbar, Advocate for the petitioner. This is an application under Section 151 of the Code of Civil Procedure seeking exemption from filing certified copies of Annexure P-1 to P-4. The prayer made in the application is declined. Counsel to file the certified copies. Adjourned sine die. To be listed as and when needful is done. August 24, 2006 Sd/- RSA No.4813 2009 - 11 - gbs (Ajay Kumar Mittal) Judge” In the meantime, the suit was decreed on 24.8.2006 but the judgment and decree of the trial Court was not challenged by the defendants before the First Appellate Court within limitation. However, an application, namely, 23743-CII-2006 dated 22.11.2006 was filed in this Court in the Civil Revision No.4425 of 2006, for placing certified copy of orders, which was exempted on 24.8.2006. With the filing of this application, the main revision petition was revived and thereafter, case was adjourned on request of learned counsel for the petitioner from 23.11.2006 to 30.11.2006. Then again on 30.11.2006, the case was adjourned to 4.12.2006 and again the case was adjourned from 4.12.2006 to 14.12.2006, from 14.12.2006 to 19.12.2007 and from 19.12.2007 to 9.1.2007. On 9.1.2007 the case was adjourned to 16.1.2007 and hence forth it was kept on adjourning to 6.2.2007, 9.3.2007, 26.3.2007, 30.4.2007, 22.5.2007. When ultimately on 22.5.2007, the following order was passed in the Civil Revision No.4425 of 2006: “Present: Mr.Anand Chhibar, Advocate for the petitioner. In this revision petition filed under Article 227 of the Constitution of India, challenge is to order dated 07.04.2005, whereby the trial Court has closed his evidence of defendant No.1- petitioner and order dated 01.08.2006, whereby an application of defendant No.1-petitoiner for setting aside/recalling RSA No.4813 2009 - 12 - order dated 7.4.2005 has been dismissed. After arguing the case for some time, learned counsel for the petitioner states that he may be allowed to withdraw this revision petition with liberty to take recourse to the legal remedies in accordance with law. Allowed to do so. Dismissed as withdrawn.” After that Civil revision an Appeal No.223 was filed before the Addl. District Judge on 8.8.2007 against the judgment and decree dated 24.8.2006 along with an application under Section 5 of the limitation Act, 1963 for condonation of delay of 210 days in filing of the appeal. The said application was dismissed and the appeal was also dismissed on merits by the Court below. In the background of the aforesaid facts, learned counsel for the appellants has argued that this Court should take a lenient view as the party should not suffer because of the lapse on the part of the counsel. He laid emphasis on the decision of the Supreme Court in the case of Rafiq and another (Supra) to support his arguments in which the Supreme Court held that party as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanor of his counsel. It is also submitted that in the said case, cost imposed was ordered RSA No.4813 2009 - 13 - to be recovered from the counsel. Although, learned counsel for the appellants has not framed any question of law with regard to the limitation but has submitted that the Court should be liberal in so far as limitation is concerned and a meritorious case may not be thrown at the threshold because of the lapse on the part of the counsel. I am afraid that the judgment cited by the counsel for the appellant would not be applicable in the facts and circumstance of this case because the lapse on the part of the counsel is not at one stage rather it is continuous right from the very beginning. Even, the party cannot attribute the entire fault to the counsel as they are also equally responsible because on the three previous dates, namely, on 21.12.2004, 31.1.2005 and 10.3.2005, it was the duty of the defendants to bring their witnesses for the purpose of their examination but they did not lead any evidence. Therefore, it cannot be said that counsel was alone responsible for the lapse. Further it is the lapse on the part of the appellant that first appeal was not filed within a period of 30 days, as prescribed, from the impugned judgment and decree of the trial Court and a lame excuse has been made about the pendency of the present Revision Petition of this Court, which after the decree of the suit had otherwise become infructuous. The appellant should have challenged the said order by which evidence was closed in the appeal itself, which was filed before the Court below but the said course was not adopted. Moreover, revision petition filed before this Court got adjourned sine die on 24.8.2006 and was got revived in November 2006 after a period of three months. Thereafter, the present appeal has been refiled after a delay of 82 days. Thus, at every stage, there is a lapse RSA No.4813 2009 - 14 - on the part of the appellants or their counsel. Therefore, I do not find that judgment relied upon by the counsel for the appellant in the case of Rafiq and another (Supra) is of any help to them. In view of the above, I do not find any merit nor any substantial question of law having been involved in the present appeal and as such the same is hereby dismissed though without any order as to costs. (RAKESH KUMAR JAIN) 10.05.2010 JUDGE Vivek