Del HC | Scope of Or. 9 R. 13 CPC application: Whether summons duly served and/or whether defendant was prevented by ‘sufficient cause’ from appearing? Explained

Delhi High Court: Manoj Kumar Ohri, J., expressed that

“Sufficient Cause” is an elastic expression and no hard and fast guidelines are prescribed.

In the present matter, Judgment dated 01-02-2019 was sought to be set aside as well as condonation of delay of 582 days.

Factual Matrix

Permanent Injunction restraining infringement and passing off of trademark, copyright, damages, delivery up etc. was sought in the instant suit.

It was averred that the plaintiff’s predecessor had started the business of selling sweets in the year 1912 and trademark/label ‘HIRA SWEETS’ was conceived and adopted by the plaintiffs’ predecessor in the year 1960. Plaintiff 1 was the registered proprietor of the original artistic work ‘HIRA SWEETS’ and it became the registered proprietor of the mark and device ‘HIRA SWEETS’ under Classes 29, 30, 32 and 43 of the Trade Marks Act, 1999 in 2016.

Defendant was served with the summons and after availing various opportunities and filing written statement, stopped appearing before the Court.

On 01-02-2019, Court had come to the conclusion that the defendant had no real prospect of defending the claim. Therefore, the suit was decreed in favour of the plaintiffs.

Analysis, Law and Decision

Order IX Rule 13 CPC

Bench stated that insofar as the scope of an application under Order IX Rule 13 CPC was concerned, Court has to see whether the summons in the suits were duly served or not and/or whether the defendant was prevented by any “sufficient cause” from appearing when the suit was called for hearing.

In the present matter, the defendant was duly served with the summons in the suit and had appeared.

High Court, in its discretion, has to consider the “sufficient cause” in the facts and circumstances of every individual case and in interpreting the said Court has wide discretion.

As per Article 123 of the Limitation Act, the application for setting aside ex-parte decree should be filed within 30 days of passing the decree.

Supreme Court in a recent decision of A. Murugesan v. Jamuna Rani,(2019) 20 SCC 803 affirmed its earlier view in G.P. Srivastava v. R.K. Raizada, (2000) 3 SCC 54.

In the present case, although the defendant blamed her counsel for his non-appearance which resulted in passing of the decree, however, a perusal of the Judgment dated 01-02-2019 would show that the same was passed after considering the merits of the case.

Ex-Parte Decree

Court noted that the defendant had failed to state that after becoming aware of the passing of the ex-parte decree, what steps were taken by it to seek setting aside of the same. Further, the Bench remarked that, it appeared that the defendant preferred to sit over it.

It was noted that after being aware of the ex-parte decree on 18-07-2019, the defendant took no steps against its counsel for more than 14 ½ months when a complaint was stated to be filed and too, two weeks prior to the filing of the captioned applications.

Hence, in view of the above, Court opined that the action taken seemed to be only an afterthought with the aim of filing the present application.

Delay in filing of application

With regard to the delay of 582 days in filing the application, the defendant explained the same stating that some settlement talks were going on between the parties. But the counsel for the plaintiffs denied any settlement talks.

Bench opined that the defendant failed to show any “sufficient cause” for its absence in the Court. Adding to this it was stated that defendant had also failed to satisfactorily explain the delay of 582 days in filing the application and the explanation placed by the defendant was only an eye-wash.

Therefore, the application were dismissed in the above-view. [Hira Sweets and Confectionery (P) Ltd. v. Hira Confectioners,  2021 SCC OnLine Del 1823, decided on 27-04-2021]

Advocates before the Court:

For the plaintiffs: Satish Kumar, Advocate

For the Defendant: B.K. Pandey, Advocate