Vinod Kumar v. Advocate

The petitioner asserts that he first became aware of the ex parte judgment only upon receipt of notice in execution proceedings initiated by the respondent. He then filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree, accompanied by a delay condonation application under Section 5 of the Limitation Act. Alongside, he also sought a stay on the execution proceedings through an application under Section 151 CPC, which was initially allowed vide order dated 11.11.2019.

5. Despite this, the trial court rejected the delay condonation application vide order dated 07.01.2020, finding the explanation unsatisfactory. The petitioner then preferred a civil revision against the said order, which too was dismissed Writ Petition (M/S) No. 357 of 2020, Sunil Kumar vs. Vinod Kumar - . 2 Ashish Naithani J. learned Additional District Judge, Kotdwar on

05.02.2020. Aggrieved, the petitioner approached the High Court under Article 227 of the Constitution, challenging the ex parte judgment and decree, as well as the dismissal of the applications filed under Order 9 Rule 13 CPC and the subsequent civil revision. He sought setting aside of the impugned orders and restoration of the original suit for proper adjudication on merits.

6. Heard the learned counsel for the parties and perused the records.

7. The petitioner submits that the ex parte decree dated 16.07.2018 was passed without providing him a fair opportunity to contest the matter. He states that after filing a vakalatnama on 13.03.2018, he was advised by his counsel that personal presence was not necessary and that objections would be filed on his behalf. During this period, the petitioner claims he was undergoing medical treatment and was also engaged in securing higher education admission for his son, which required him to travel to Dehradun. Due to these circumstances, he could not remain actively involved in the case.

8. It is contended that the petitioner only came to know about the ex parte decree after receiving notice in the execution case, whereupon he promptly filed an application under Order 9 Rule 13 CPC, along with a delay condonation application under Section 5 of the Limitation Act. He asserts that the delay was neither deliberate nor due to negligence and that sufficient cause had been shown. The petitioner argues that the trial court rejected the application on a purely technical ground without appreciating the bona fide reasons for his absence. Writ Petition (M/S) No. 357 of 2020, Sunil Kumar vs. Vinod Kumar - . 3 Ashish Naithani J.

9. The petitioner further submits that the revisional court also erred in law by dismissing the revision mechanically without proper consideration of the merits. He contends that his right to defend the suit and lead evidence was unfairly curtailed, and that the impugned orders, if allowed to stand, would result in irreparable harm, particularly since the dispute concerns immovable property between real brothers.

10. The respondent, Vinod Kumar, firmly opposed the writ petition, submitting that the petitioner has approached the Hon’ble Court with unclean hands and a concocted story after having deliberately absented himself from proceedings in the trial court. It is submitted that the petitioner, despite filing his vakalatnama on 13.03.2018, did not file any written statement or objections, nor did he ever appear before the Civil Judge (Junior Division), Kotdwar. As a result, the court rightly proceeded ex parte against him and decreed the suit on

16.07.2018. The respondent asserts that no application under Order 9 Rule 13 CPC for recall of the ex parte judgment was filed until 21.10.2019 more than 15 months after the ex parte decree which clearly reflects the petitioner’s gross negligence and lack of bona fides.

11. The respondent refutes the petitioner’s explanation regarding medical treatment and his son's education as afterthoughts, pointing out that no such documents or medical records were filed before the courts below and were produced for the first time in the High Court.

12. It is also submitted that the petitioner had full knowledge of the ex parte decree at least by May 2019, when he appeared in the execution proceedings and filed a vakalatnama on 03.05.2019. Yet, no steps were taken to seek recall of the decree at that time. The delay of approximately 1 Writ Petition (M/S) No. 357 of 2020, Sunil Kumar vs. Vinod Kumar - . 4 Ashish Naithani J. year, 6 months, and 18 days, the respondent argues, has not been explained with any credible material.

13. The respondent further contends that both the trial court and the revisional court rightly rejected the petitioner’s applications after considering the facts and procedural record. The Civil Judge had passed the decree only after affording sufficient opportunity to the petitioner, who had chosen to remain absent. The execution court rightly initiated proceedings thereafter.

14. It is lastly contended that the instant writ petition is devoid of merit and has been filed merely to obstruct the execution of a lawful decree. The respondent prays for dismissal of the petition with exemplary costs, submitting that the petitioner has abused the process of law under the guise of belated technical pleas and unsubstantiated medical excuses.

15. Upon hearing the learned counsel for the parties and perusing the record, this Court is of the view that the petitioner has failed to demonstrate any cogent or legally sustainable ground warranting interference with the orders passed by the courts below. The chronology of events reveals that despite entering appearance through vakalatnama on

13.03.2018, the petitioner neither filed a written statement nor took any substantive steps to contest the suit.

16. While he attributes his absence to medical issues and obligations pertaining to his son’s education, these claims are not substantiated by contemporaneous records before the trial court, and the said documents were admittedly produced for the first time before this Court, raising serious doubts about their veracity and timing.

17. This Court finds merit in the observation of the trial court that sufficient opportunities had been provided to the Writ Petition (M/S) No. 357 of 2020, Sunil Kumar vs. Vinod Kumar - . 5 Ashish Naithani J. petitioner to participate in the proceedings, and the decree dated 16.07.2018 was passed only after his continuous absence. Moreover, the execution records clearly show that the petitioner appeared on 03.05.2019 and again on subsequent dates but chose not to move an application under Order 9 Rule 13 CPC until 21.10.2019, a delay of more than one year and six months. The delay condonation application too did not offer any convincing or satisfactory explanation. Courts are not to act as sanctuaries for those who are negligent or indifferent to judicial process.

18. Furthermore, the explanation that the petitioner relied solely on his counsel's advice regarding non-appearance is not sufficient, as the obligation to diligently pursue one’s case lies with the litigant. A party cannot shift the entire blame the advocate unless gross negligence is clearly demonstrated, which is absent in the present case.

19. The courts below have applied their judicial mind to the facts and exercised discretion judiciously, and the findings cannot be termed perverse or arbitrary to warrant interference under Article 227 of the Constitution.

20. This Court also takes note of the fact that the matter pertains to a dispute between real brothers and involves obstruction of an approach pathway, which has already been adjudicated upon through a lawful decree.

21. At this stage, entertaining the writ petition would amount to unsettling the finality of a decree passed in 2018 and would result in reopening the case without valid cause, thereby frustrating the respondent’s right to enjoy the fruits of a decree.

22. In light of the foregoing discussion, this Court finds no substance in the writ petition. The petitioner has not only Writ Petition (M/S) No. 357 of 2020, Sunil Kumar vs. Vinod Kumar - . 6 Ashish Naithani J. failed to show sufficient cause for his prolonged absence before the trial court but has also approached this Court after exhausting two rounds of adjudication both the trial court and revisional court having concurrently held against him. The narrative of medical issues and educational responsibilities, unsupported by any cogent evidence before the courts below, does not inspire confidence and appears to be an afterthought devised to delay the inevitable execution of a lawful decree. This Court is further of the opinion that the present proceedings have been initiated with the sole intent of stalling execution, thereby causing unwarranted delay administration of justice.

23. Litigation must not become a tool for harassment or procrastination. Courts are duty-bound to uphold the sanctity of procedural rules while also balancing equity and fairness. In the present case, the petitioner, despite being well-aware of the ex parte decree, took no action for over a year and a half, and has attempted to blame his own inaction on vague and unverified grounds. Such conduct is a misuse of the judicial process and deserves to be deprecated. ORDER Accordingly, the writ petition is dismissed with heavy costs quantified at ₹80,000/- (Rupees Eighty Thousand only), to be deposited with the Uttarakhand High Court Legal Services Committee within four weeks from the date of this order. SB ___________________ ASHISH NAITHANI, J. Writ Petition (M/S) No. 357 of 2020, Sunil Kumar vs. Vinod Kumar - . 7 Ashish Naithani J.