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TMI Blog2022 (1) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... lia, claiming that the goods were not accepted or returned due to reasons mentioned in debit notes and in fact, the respondent owes Rs.88,785/- to the appellant. 5. After the admission and denial of documents and framing of issues, the suit was set for trial. The respondent as the plaintiff lead evidence which concluded on 1 st May 2015 and the case was put up for the appellant's evidence on 28th October 2015. 6. On 29th September 2015, Shailendra Garg, the sole proprietor of the appellant was arrested by the Rajasthan Police in an unrelated case, and thereafter on 6th October 2015, he was sent to judicial custody and detained in Central Jail, Jaipur. He was released on bail on 6th May 2017. It is the appellant's case that due to the detention, the appellant was prevented from effectively contesting and participating in the civil suit. Consequently, since none appeared for the appellant, vide the order dated 28th October 2015, the Joint Registrar, Delhi High Court, directed closure of the defence evidence. 7. On raising the plea of pecuniary jurisdiction, the suit was transferred to the court of District Judge, Tis Hazari, Delhi. 8. On an application moved by the appellant, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te affidavit, notwithstanding that it was known that Shailendra Garg was in jail and not in the position to appear and follow up the civil suit. After recording the aforesaid position, the suit was nevertheless adjourned to 4th November 2016 for recording of defence evidence on payment of costs of Rs.5000/-. 14. On 4 th November 2016 the counsel for the appellant did not appear and the defence evidence was closed. Final arguments were heard on 7th November 2016 and the case was fixed for clarification on 8th November 2016. On 8th November 2016, an ex-parte judgment was passed, decreeing the suit filed by the respondent in the sum of Rs.81,24,786.23p along with pendente lite interest at the rate of 24 percent per annum and post decree interest at the rate of 18 percent per annum till the realization. 15. Shailendra Garg was released on bail on 6 th May 2017 and within 10 days of his release on 16th May 2017, he filed an application under Order IX Rule 13 of the Code for setting aside of the ex-parte decree. In particular, it was pleaded that the High Court had failed to issue production warrant for appearance of Shailendra Garg before closing the defence evidence, despite the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) concerned Jail Superintendent whether defendant is on bail in the said matter or not and the Hon'ble court found the said clarification baseless and directed against Jail Superintendent to produce the defendant and the matter was adjourned for 08.06.2016. On 08.06.2016, in view of the circular of the Hon'ble High Court, matter was sent back to the Ld. District Judge to transfer the case to the Hon'ble High Court. Thereafter, on 10.08.2016, the matter was again sent to the Ld. ADJ and then matter was listed for 22.08.2016. On 22.08.2016, the Court fixed the case for DE for 09.09.16. On 09.09.2016, proxy counsel for the defendant has appeared and filed an application for issuance of production warrants. The Court observed that it is incline to issue production warrants provided proper affidavit filed either by plaintiff or his counsel that defendant is actually happened to be in jail till date along with particular of the case and that he has not been released from jail and court adjourned the matter for 04.11.2016. On 04.11.2016, only plaintiff counsel has appeared but M. No.264/17 Prakesh Chand Goel Vs. M/s Garment Craft Page 6 of 9 none appeared on behalf of defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel also become lethargic as he might not be getting his fees therefore even proxy counsel was not appeared on 04.11.2016 due to which DE was closed. Hence in these circumstances, in my view there is sufficient ground to set aside the order dated 04.11.2016 closing DE in the interest of justice." 17. Thereupon, the respondent preferred a miscellaneous petition under Article 227 of the Constitution of India, which vide the impugned order dated 4th July 2019 has been allowed primarily for the reason that the counsel for the appellant had applied and taken certified copy of the judgment dated 8th November 2016 in December, 2016 which shows that the appellant was represented by his counsel even at that stage. The contention of the appellant that he acquired knowledge of the decree only after his release from custody on 6 th May 2017 was wrong. In view of the aforesaid facts, the trial court should not have accepted the argument that the appellant and his counsel were not in communication during the period when the appellant was in judicial custody. Earlier, the application for reopening the defence evidence was filed by pairokar of the appellant. 18. Having heard the counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to." 19. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, if any, and the witnesses will be subjected to cross examination. These dates would be given on the first date of hearing on 2 nd February 2022. 23. During the course of hearing, it was pointed out that the properties belonging to the appellant have been put to auction and even bids have been received. It is obvious that the proceedings for enforcement of the decree which we have set aside, shall be treated as void. However, to protect the interest of the respondent, who has pleaded and argued that the appellant is trying to dissipate or transfer his assets, we deem it appropriate to direct the appellant to file details of all of his movable and immovable assets as in existence on the date of filing of the suit in an affidavit which will be filed within three weeks from the pronouncement of this order. The order dated 21st May 2013 passed by the High Court, by which the applications of the respondent under Order XXXIX, Rules 1 and 2 and Order XXXVIII, Rule 5 were rejected, does refer to the immovable assets owned by the appellant. The affidavit should also indicate his present assets and transfers including relinquishment etc. of the appellant's movable and immovable propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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