Final Order 5

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: MISC DJ 712/2025
Nageshwar Sharma vs. Delhi Urban Shelter Improvement Board
24.11.2025
ORDER
1. By way of present order, I shall decide two separate
applications, one under Order IX Rule 13 CPC for setting
aside ex-parte judgment and decree dated 07.01.2025
passed in CS (Comm) 1510/2023 and another under
Sections 5 & 14 of the Limitation Act for condonation of
delay in filing the above said application, as filed on behalf
of applicant/defendant.
2. Arguments have been advanced by Mr. Vinay Rathi,
Ld. Counsel for applicant and by Mr. Sahil Goel, Ld.
Counsel for non-applicant. I have also perused the record.
3. Ld. Counsel for applicant argued that CS (Comm)
1510/2023 as filed by non-applicant/plaintiff was fixed for
final arguments on 07.01.2025, but the Ld. Predecessor
decreed the suit on the said date without providing an
opportunity to the applicant to argue its case on merits. It is
submitted that on 07.01.2025, counsel for the applicant
could not appear before the court as five fresh matters
were filed by defendant herein before Ld. District Judge
Court, Rohini and same were marked to different courts.
4. Ld. Counsel for applicant vehemently contended
that non-appearance of applicant/defendant on the date
when matter was fixed for final arguments i.e. 07.01.2025
was neither intentional nor deliberate but due to
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circumstances beyond the control of applicant.
5. Ld. Counsel for applicant argued that applicant filed
a review petition which was also dismissed by Ld.
Predecessor vide order dated 21.04.2025 and that he also
preferred RFA (Comm) 378/25 before Hon’ble High Court
of Delhi which he withdrew with liberty to file present
application to set aside the ex-parte decree.
6. Ld. Counsel for applicant/defendant further argued
that there is a delay of about 98 days in filing the present
application on account of availing the remedy for review
of the decree and thereafter in preferring the RFA (Comm)
378/25 before Hon’ble High Court of Delhi. It is thus
submitted by Ld. Counsel for applicant/defendant that the
delay in filing the application under Order IX Rule 13 CPC
may be condoned and the ex-parte judgment and decree
dated 07.01.2025 may be set aside. Ld. Counsel for
applicant has also relied upon the judgment titled as Bhanu
Kumar Jain vs. Archana Kumar & Anr., 2005 AIR SC 626.
7. Per contra, Ld. Counsel for non-applicant/plaintiff
argued that applicant has not shown any sufficient cause
for his non-appearance on 07.01.2025 when the CS
(Comm) 1510/2023 was fixed for final arguments. It is
submitted that the judgment was passed by Ld.
Predecessor of this court on 07.01.2025 after waiting for
the counsel for applicant/ defendant till 04:00 pm as also
appearing from the order sheet. Ld. Counsel for non-
applicant/ plaintiff further argued that all the fresh matters
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are usually taken up at 02:00 pm for the purpose of
admission and three new appeals as filed on behalf of
applicant/ defendant were listed in one court. It is
submitted that even otherwise the plea that the counsel was
busy in some other court is not a sufficient cause for non-
appearance in a matter which was being contested by the
defendant and fixed for final arguments.
8. Ld. Counsel for non-applicant/plaintiff further
argued that as per explanation of Order XVII Rule 2,
where the evidence of any party has been recorded and
such party fails to appear on any day to which the hearing
of the suit is adjourned, the court may in its discretion
proceed with the case as if such party were present. Ld.
Counsel for non-applicant/plaintiff argued that as the
proceedings are conducted in hybrid mode, even the
counsel for applicant/defendant did not bother to make a
request for adjournment or addressing arguments through
video conferencing. It is thus submitted that present
applications are liable to be dismissed with costs.
9. In brief, facts of case are that non-applicant/plaintiff
filed a suit for recovery of Rs.10,47,668/- (Rupees Ten Lac
Forty Seven Thousand Six Hundred Sixty Eight only) on
the averments that work order no.27 dated 22.02.2022 was
awarded to the plaintiff. The work was completed by the
plaintiff to the satisfaction of Engineer In-charge, who also
completed the measurement of the work and also passed
the bills of the plaintiff for a sum of Rs.9,14,106/- on
03.01.2023. The plaintiff claimed that he had deposited
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security amount of Rs.24,706/- and charges for sample
testing for Rs.13,400/- and that plaintiff was entitled for
Rs.9,52,426/- as principal and Rs.95,242/- as interest i.e.
total amounting to Rs.10,47,668/-.
10. The applicant/ defendant contested the suit and also
examined its witness as DW-1. After the evidence was
closed by the parties, the matter was fixed for final
arguments on 07.01.2025, on which date, the matter was
called repeatedly but none had appeared on behalf of
applicant/defendant and Ld. Predecessor at 04:00 pm
decreed the suit of plaintiff.
11. Admittedly, there is a delay of about 98 days in
filing the application under Order IX Rule 13 CPC by the
applicant/defendant on the plea that the time spent by the
applicant/defendant was on account of obtaining certified
copies, preferring review application and in filing statutory
appeal i.e. RFA (Comm) 378/25 before Hon’ble High
Court of Delhi. In view of submissions and reason
mentioned in the application under Sections 5 & 14 of the
Limitation Act, the delay of 98 days in preferring the
application under Order IX Rule 13 CPC stand condoned.
Accordingly, the application under Section 5 & 14 of the
Limitation Act stands allowed.
12. The core question to be answered is whether the
applicant/defendant was prevented by any sufficient cause
from appearing when the suit i.e. CS (Comm) 1510/2023
was called for final arguments on 07.01.2025.
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13. Hon’ble High Court of Delhi in Ram Kumar vs.
Oriental Insurance Company Ltd. & Ors MAC.APP.
118/2022, held that in order to determine the application
under Order 9 Rule 13 CPC, the test that has to be applied
is whether the defendant honestly and sincerely intended to
remain present when the suit was called on for hearing and
did his best to do so. Sufficient cause is thus the cause for
which the defendant could not be blamed for his absence.
14. On the date fixed for final arguments i.e.
07.01.2025, neither Ld. Counsel for defendant/applicant
nor any official from the office of defendant/applicant was
present. In support of his plea that on 07.01.2025, Ld.
Counsel for applicant could not appear before Ld.
Predecessor as he was busy in Rohini Courts, he has
placed on record the copies of ordersheets i.e. Annexure
A5, which shows that in three appeals i.e. RCA 1/25 to
3/25 which were listed in same court, the Ld. Judge was on
leave on 07.01.2025 and in appeal i.e. RCA 4/25, Ld.
Counsel had appeared through VC and in appeal i.e. RCA
5/25, Ld. Counsel sought adjournment for filing hard copy
and all these three appeals i.e. RCA No.1/25 to 5/25, were
adjourned for 09.01.2025.
15. Thus, the ordersheets as filed by applicant regarding
its cases listed on 07.01.2025 itself shows that all five
cases were listed before Rohini Courts and in three
appeals, the concerned Judge was on leave, in another
matter i.e. RCA No.4/25, the counsel had appeared through
VC and same was adjourned for filing hard copy and the
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matter i.e. RCA DJ 5/25 was also adjourned at the request
of the counsel for 09.01.2025.
16. No reason is given by Ld. Counsel for applicant that
if he could have appeared in a matter before Rohini court
through VC why he did not appear before this court on
07.01.2025 through VC to make his submission either for
adjournment or for addressing final arguments. Ld.
Counsel for applicant has failed to show any sufficient
cause for his non-appearance on 07.01.2025 when the
matter was fixed for final arguments. The present
application under Order IX Rule 13 CPC as filed on behalf
of applicant for setting aside the judgment and decree
dated 07.01.2025 is devoid of any merit and same stands
dismissed being so.
(Sanjeev Kumar Malhotra)
District Judge (Commercial Court)-08
Central, Tis Hazari Courts, Delhi
24.11.2025
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