UNREPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 3 rd March, 2008 + (1) FAO(OS) 512/2007 and CM No.17659/2007 M/S. VIJAY CABLES INDUSTRIES & ANR. ..... Appellants Through: Ms. Suman Kapoor, Advocate versus THE NATIONAL SMALL INDUSTRIES CORPORATION LTD. ..... Respondent Through: Mr. A.K. Thakur and Mr. Bharat Gupta, Advocates + (2) FAO(OS) 516/2007 and CM No.17693/2007 VIJAY CABLES INDSUTRIES & ANR. ..... Appellants Through: Ms. Suman Kapoor, Advocate versus THE NATIONAL SMALL INDUSTRIES CORPORATION LTD. ..... Respondent Through: Mr. A.K. Thakur and Mr. Bharat Gupta, Advocates CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? JUDGMENT % 03.03.2008 : DR. MUKUNDAKAM SHARMA, CJ. (ORAL) FAO(OS) 512/2007 and 516/2007 Page 1 of 5 1. Both the appeals are being disposed of by this common judgment and order as they are between the same parties. 2. This appeal is directed against the judgment and order dated 06.07.2007 passed by the learned Single Judge dismissing the application filed by the appellants praying for setting aside the ex parte decree. The aforesaid application being IA No.7157/07 was filed by the appellants herein in the suit, being CS(OS) No.2318/1990 filed by the respondent Corporation seeking for a decree of recovery of about Rs.46 lakhs along with interest both pendentelite and future. 3. In order to counterblast the aforesaid suit filed by the respondent, the appellants filed a cross-suit against the respondent seeking for a decree of recovery of about Rs.26,68,561/-, which was registered as CS(OS) No.2300/1991. The suit filed by the respondent was instituted in 1990 and the cross-suit filed by the appellant was instituted in 1991 and they were being taken up together. As stated by the counsel appearing for the appellants, the suit filed by the appellants came to be dismissed for non-prosecution and in default by an order dated 13.09.2004. Despite the said fact, no application was filed seeking for restoration of the said suit. The trial in the other suit, being CS(OS) No.2318/1990, however, is continuing, but the appellant failed to appear in the said suit also, consequent upon which, an order was passed for proceeding in the suit ex parte as against the defendants No.1 and 2. The said FAO(OS) 512/2007 and 516/2007 Page 2 of 5 order was passed on 14.12.2005. Subsequent thereto, an ex parte decree came to be passed in the said suit on 17.03.2006. After the aforesaid ex parte decree was passed in the suit filed by the respondent, an application seeking for setting aside the ex parte decree was filed on 17.04.2007 contending, inter alia, that the appellant was ill and was unwell and, therefore, he was not in a position to pursue the matter diligently. 4. The aforesaid contention of the appellant was considered by the learned Single Judge. The learned Single Judge has appreciated the averments made in the application and found the ground stated therein for non-appearance to be vague. In the said application, the only statement that was made by the appellants is that despite due diligence, both the defendants No.1 and 2 could not put in appearance. However, the documents filed in support of the contention in the said application were in the nature of some medical records. The said medical records which are filed by the appellants in support of the averments made in the application are of the period prior to the year 1992. The suit was directed to be proceeded ex parte by an order dated 14.12.2005 whereas the suit filed by the appellants was dismissed for non-prosecution on 13.09.2004. There is only one medical certificate after the year 1992, which is of the year December, 1999 to the effect that Mr. Vijay Kumar Bhatia has angina problem. Persons with such problems are also prosecuting their cases effectively in Courts and, therefore, the learned Single Judge did not find FAO(OS) 512/2007 and 516/2007 Page 3 of 5 sufficient cause either to recall the order dated 13.09.2004 or to set aside the ex parte decree passed in the suit. 5. The grounds given are assailed before us by the counsel appearing for the appellants very vehemently contending, inter alia, that if the appellant was unwell, in that event the learned Single Judge should have set aside the ex parte decree and also should have recalled the order dated 13.09.2004 dismissing the suit filed by the appellants for non-prosecution and given opportunity to the appellants to proceed with both the suits. 6. We are, however, unable to accept the aforesaid contention of the counsel appearing for the appellants for the simple reason that it appears the suit was coming up to a close as it was at the stage of recording of evidence. The appellant, at least in the suit filed by the respondent, should not have defaulted in making appearance and thereby allowed the suit to be proceeded ex parte. Even thereafter, no steps were taken by him to get the said order vacated. The record shows that after the suit was directed to be proceeded ex parte and the same proceeded accordingly, and an ex parte decree was passed after about a year of the said date, for the first time an application was filed for setting aside the decree. That also on the ground of medical reasons, which is again unsupported by the documents on records for the relevant period during which the aforesaid default was committed by the appellants. FAO(OS) 512/2007 and 516/2007 Page 4 of 5 7. There are some further documents sought to be placed on record which we are not inclined to look into at this stage. They were not placed before the learned Single Judge, and appear to have been placed on our record as an after thought. Since those were not placed before the learned Single Judge, we are not inclined to look at the said documents. 8. We find no merit in the appeals and both the appeals are accordingly dismissed. CM Nos.17659/2007 and 17693/2007 also stand disposed of accordingly. CHIEF JUSTICE REVA KHETRAPAL, J MARCH 03, 2008 km FAO(OS) 512/2007 and 516/2007 Page 5 of 5