Order 18

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SHRI NARESH KUMAR LAKA
DISTRICT JUDGE – 07, CENTRAL DISTRICT,
TIS HAZARI COURTS, NEW DELHI
CS No. 1247/23
CNR NO. DLCT01-016147-2023
In the matter of:
Sher Bahadur
….. Plaintiff
vs.
Hariom & Ors.
….. Defendants
Dated: 16.07.2025
O R D E R
Vide this order, I shall decide an application filed by the
defendant no.1 under Order 9 Rule 13 CPC. Reply is already on record. I
have heard arguments from Sh. Anurag Malik, Ld. Counsel for the plaintiff
and Sh. Laksh Khanna with Sh. Jatin Kadam & Sh. Abhinav Kumar, Ld.
Counsel for the defendant no.1/applicant.
2. It is stated that the defendant had appeared in the present case
through his previous counsel but said counsel initially did not file the WS
for want of some documents. Later on, the defendant no. 1 collected the
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said documents and handed over to his counsel. It is alleged that the said
previous counsel did not file the WS and informed a wrong date to the
defendant. As such, the defendant no. 1 could not appear in this case.
Consequently, the defendant was proceeded ex-parte vide order dated
23.09.2024 and the ex-parte judgment was passed.
3. Ld. Counsel for the defendant no.1 argued that there was no
default or lapse on the part of the defendant no.1 in filing of WS and the
defendant no. 1 was under the
bona fide impression that his previous
counsel would comply with all legal requirements and on passing of ex-
parte decree on 23.09.2024, the defendant n.1 became aware about such
lapses on the part of his counsel. It is also argued that complete documents
were not provided by the plaintiff to advance his claim of being the owner
of the suit property and even no rent receipts were placed on record by the
plaintiff. Ld. Counsel for the defendant no. 1 also relied on following case
laws:
(i) ‘Prabhati Lal v. Surajit & Ors.’ SB Civil Revision Petition
No. 126/2007);
(ii) ‘Bhanu Kumar Jain vs. Archana Kumar and Ors. (Civil
Appeal No. 8246/2004)
4. On the other hand, said application was strongly opposed on
the ground that the conduct of the defendant no.1 was very causal because
despite knowing the filing of the suit, he did not personally watch its
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proceedings and even his counsel also appeared twice.
5. From the order sheets, it is seen that the Ld. Counsel for the
defendant no.1 appeared after service of summons on two occasion I.e
06.05.2024 and 22.07.2024. However, despite giving sufficient opportunity,
defendant neither filed WS nor any one appeared on his behalf on the day
when he was proceeded ex-parte and consequently, after closing his right to
file WS, judgment was passed on 23.09.2024 for recovery of possession
only as per Order 8 Rule 10 CPC and the present suit is still pending for
remaining reliefs. It is also observed that the present application has been
filed by the defendant no.1 on 04.12.2024 much prior to the date fixed i.e.
07.12.2024.
6. It is a settled position of law that on account of negligence of
the counsel/Advocate, a party should not suffer. The defendant may file
complaint against his advocate, if desired.
7. After considering aforesaid submissions and the fact that the
defendant is a layman and presumably he is not aware about the
consequences of not appearing and not filing of written statement, the
present application seeking setting aside of the judgment/decree dated
23.09.2024, is allowed subject to cost of Rs. 10,000 to be paid to the
plaintiff on next date for causing inconvenience and delay.
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8. The impugned judgment/decree is set aside qua defendant
no.1. The defendant no.1 is given an opportunity to file WS within 30 days
with advance copy to opposite counsel.
9. Put up for further proceeding on 28.08.2025. Copy of order be
given dasti.
Announced & dictated in
the open court on 16.07.2025
(Naresh Kumar Laka)
District Judge-07
Central District
Tis Hazari Court, Delhi.
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