C. R. No. 2844 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 2844 of 2010 Date of Decision : May 03, 2010 Faridabad Complex Administration (now Municipal Corporation, Faridabad) and another .... Petitioners Vs. Raja Ram .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Mohnish Sharma, Advocate for the petitioners. * * * L. N. MITTAL, J. (Oral) : This revision petition illustrates how the process of Court is abused by the bureaucrats and the statutory authorities and the Courts are over-burdened with unnecessary litigation. Raja Ram – respondent filed civil suit against Faridabad Complex Administration(now Municipal Corporation, Faridabad) and its Administrator for recovery of Rs.30,000/-. The defendants, who are petitioners herein, were duly and admittedly served in the suit for 18.12.1990. Their counsel put in appearance on the said date in the trial court and sought many adjournments for filing written statement, but no written statement was filed. The defendants were proceeded ex-parte on 16.09.1991, when none appeared for them. The suit was decreed ex-parte C. R. No. 2844 of 2010 2 vide judgment and decree dated 22.01.1996 (Annexure P-2) for recovery of Rs.29,702/- with interest thereon @ 6% per annum from the date of filing of suit till recovery. Defendants filed application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure for setting aside ex-parte judgment and decree dated 22.01.1996. It was alleged in the application that defendants had authorized Mr. Ashok Maggu, Advocate to appear on their behalf in the suit, but the said Advocate did not appear and in his place Mr. L. D. Tiwari, Advocate (who was not authorized by the defendants) put in appearance on 18.12.1990 in the trial court and the case was adjourned many times on the request of Mr. L. D. Tiwari, who did not file any Vakalatnama on behalf of the defendants and ultimately defendants were proceeded ex-parte on 16.09.1991. It was alleged that the defendants came to know about the decree on 17.03.1999, when warrant of attachment was received and thereupon application for setting aside the ex-parte judgment and decree was moved on 31.03.1999. Learned Additional Civil Judge (Senior Division), Faridabad, vide judgment dated 31.01.2006 (Annexure P-1), dismissed the said application. Against the said order, the defendants preferred Civil Revision No. 2671 of 2006 in this Court. However, the said Civil Revision was dismissed as withdrawn with liberty to file appeal against the trial court's order as the said order is appealable, vide order dated 18.12.2008 passed by this Court. Thereafter, the defendants filed appeal on 04.03.2009 against trial court's order Annexure P-1. The said appeal has been dismissed by learned Additional District Judge, Faridabad, vide judgment dated 15.12.2009 (Annexure P-5). The instant revision petition has been preferred under Article 227 of the Constitution of India assailing judgment dated 31.01.2006 (Annexure P-1) passed by the trial court and judgment dated 15.12.2009 (Annexure P-5) passed by the appellate court. I have heard learned counsel for the petitioners and perused the C. R. No. 2844 of 2010 3 case file. Learned counsel for the petitioners vehemently contended that the petitioners had engaged Mr. Ashok Maggu, Advocate to represent them in the trial court in the suit, but Mr. Maggu did not appear and therefore, for the fault of the said Advocate, the petitioners should not suffer. Reliance in support of this contention has been placed on two judgments of Hon'ble Supreme Court namely Malkiat Singh vs. Joginder Singh reported as 1998 (1) P. L. R. 271 and Tahil Ram vs. Ramchand reported as 1993 (2) R. C. R. (Criminal) 617, wherein it was observed that a party should not suffer on account of fault of the counsel. Reliance has also been placed on judgment of Hon'ble Apex Court in the case of State of Nagaland vs. Lipok AO and Ors. reported as 2005 (3) S. C. C. 752, wherein it was held that the Courts should be liberal in condoning the delay. I have carefully considered the aforesaid contentions, but find no merit therein. It is not a simple case of the counsel engaged by a party not appearing in the Court. The defendants had engaged Mr. Ashok Maggu, Advocate to appear in the trial court, but in his place Mr. L. D. Tiwari, Advocate put in appearance stating in the Memorandum of Appearance that Mr. Ashok Maggu was not available for some reason. Thus, Mr. L. D. Tiwari put in appearance as junior/proxy for Mr. Ashok Maggu, who had been engaged by the defendants. This is not an uncommon thing, which is rather very common practice happening in every Court. If a counsel engaged by a party is not available for any reason, his proxy puts in appearance. Even if the matter had rested there, something could possibly be said for the defendants. However, even Parokar of the defendants was present in the Court on 18.12.1990 and noted the next date of hearing. It means that the defendants themselves were watching proceedings of the trial court, but in spite thereof, nothing was done to ensure proper C. R. No. 2844 of 2010 4 appearance on their behalf or to ensure that written statement was filed on their behalf. After putting in appearance for many dates of hearing, the proxy counsel Mr. L. D. Tiwari also did not appear and therefore, the defendants were proceeded ex-parte on 16.09.1991. When Parokar of the defendants was watching the proceedings and pursuing the case on their behalf, there is no explanation why the defendants were not properly represented in the trial court on 16.09.1991 or even thereafter, when the suit was ultimately decided on 22.01.1996 i.e. after more than four years. In addition to the aforesaid, it may be added that on 02.02.1994, during pendency of the suit, Smt. Durgesh Bakshi, Advocate, who was also on the panel of advocates for the defendants, put in appearance in the trial court. However, in spite thereof, the defendants did not take any step to get the ex-parte proceedings against them set aside and to file written statement and to take other necessary steps to contest the suit. Application for setting aside ex-parte judgment and decree was moved on 31.03.1999 i.e. after delay of more than three years. Ex-parte judgment and decree had been passed on 22.01.1996. Excuse on behalf of the defendants for delay in filing the application is that they learnt of the judgment and decree dated 22.01.1996, when warrant of attachment was received on 17.03.1999. The said lame excuse cannot be accepted for condoning the delay of more than three years because the defendants had knowledge of the pendency of the suit and therefore, limitation started from the date of passing of judgment and decree and not from the date of knowledge. The defendants have been admittedly served in the suit. The defendants also initially put in appearance through counsel and also at later stage and consequently, no ground for condoning the delay of more than three years, for setting aside ex-parte judgment and decree, is made out. Even appeal against the judgment of trial court (Annexure P-1) was preferred after expiry of limitation. Condonation of delay for filing the said appeal was sought under shelter of Section 14 of the Limitation Act C. R. No. 2844 of 2010 5 because Civil Revision No. 2671 of 2006 had erroneously been filed to challenge the judgment of the trial court. The said revision petition was dismissed as withdrawn with liberty to file appeal, vide order dated 18.12.2008. However, even thereafter, the appeal was not preferred within limitation period of one month, but was preferred on 04.03.2009, for which there is no explanation whatsoever. From the aforesaid, it is thus manifest that the petitioners are grossly abusing the process of the Court because they have not to pay from their own pocket for incurring expenses on unnecessary and avoidable litigation. There has been grave misconduct on the part of the defendants at every stage of the case. The judgments of the courts below are perfectly justified and do not suffer from any infirmity, much less illegality, so as to warrant interference at the hands of this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is completely frivolous and meritless and deserves to be dismissed with heavy exemplary cost in order to curb such frivolous litigation. The revision petition is accordingly dismissed in limine with cost of Rs.10,000/- to be deposited with the Registry of this Court within one month from today, failing which the case shall be listed for this purpose. May 03, 2010 ( L. N. MITTAL ) monika JUDGE