J.H. Industrial Corporation v. Vijendra Kumar Goel - (High Court of Calcutta) (13 Apr 2017)
Term 'sufficient cause' should be construed liberally but that does not mean every cause should be accepted as sufficient cause
Instant application has been taken out by Defendant for recalling of a decree for Rs. 26,54,355.74 along with pendente lite interest at rate of 18 per cent per annum and interest on judgment at rate of 12 per cent per annum. By said decree, costs assessed at Rs. 60,000/- was also awarded in favour of Plaintiff. Said decree was passed, when suit appeared in defended list in view of fact that, Defendant did not enter appearance in suit as certified by Department of this Court. It is not in dispute that, writ of summons was duly served on Defendant.
According to Order 9 Rule 13 of Code of Civil Procedure, 1908 (CPC), an ex parte decree may be set aside, if Court is satisfied that, writ of summons was not duly served or that Defendant was prevented by any sufficient cause from appearing when suit was taken up for hearing. Admittedly, writ of summons in present case was duly served on Defendant. Hence, only ground available to the defendant is one of sufficient cause for his non-appearance. Power of Court under Order 9 Rule 13 of CPC is a discretionary power. Apex Court in various judgments observed that, power should be exercised judiciously. No doubt, term 'sufficient cause' should be construed liberally but that does not mean any and every cause should be accepted as a sufficient cause. Emphasis of Defendant's submission has been on his illness. Almost all hospitals and medical centers that, Defendant attended are all in Calcutta. Defendant has annexed Xerox copy of a registration card issued by Tata Memorial Centre, Department of Oncology, Mumbai. However, no document has been brought on record to show that, Defendant underwent any treatment at Bombay Tata Memorial Centre for any appreciable period of time or at all. Documents on record disclosed by Defendant do not support case that, Defendant had to leave Calcutta frequently for treatment.
Further, documents disclosed that, Defendant was living an active life and it was not that he was confined to his home or has been brought down altogether by his ailment so as to be incapable of attending to his business affairs, an impression that, Defendant has sought to portray in recalling application. Defendant was not as much handicapped by his ailments as he has sought to portray himself before this Court. He has been carrying on his business activities actively. Hence, his illness could not have been a sufficient cause or any cause at all which prevented him from contesting suit. There is no iota of evidence in support of Defendant's claim that, he indeed briefed learned Advocate or to show that he paid fees to learned Advocate. No correspondence exchanged between Defendant and Learned Advocate has been disclosed. Case run by Defendant in present application is not credible therefore, Court dismissed the application.
Tags : DECREE EX-PARTE VALIDITY