IN THE HIGH COURT OF DELHI AT NEW DELHI
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CS(OS) 457/2000
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JAI SINGH .. Plaintiff
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Through None
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versus
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DDA FC+ .. Defendant
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Through Ms. Shobhana Takiar, Adv
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CORAM:
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SH. S.S. MALHOTRA (DHJS), JOINT REGISTRAR (JUDICIAL)
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O R D E R
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16.08.2014
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IA No.8703/2012 (Under Section 151 CPC for condonation of delay in re-
filing the application)
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This is an application filed by defendant Under Section 151 CPC for
condonation of delay in re-filing the application.
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It is inter alia stated by the applicant the defendant has already filed
the accompanied application i.e. 8702/2012 for recalling the order of
07.09.2012 and the contents of that application are not repeated here for
the sake of brevity. It is however stated that in re-filing of instant
application there is certain delay of 20 days which may be condoned. The
fact of this application in nutshell as stated are that the court clerk
in the chamber of the counsel got a government job and newly appointed
court clerk cum peon was an inexperienced one who could not follow up the
filing off process fee even, in the Registry. The counsel received call
from the authorised person of the defendant and then she personally took
the application from Registry which was lying under objection and then
removed the objections and has re-filed
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CS(OS) 457/2000 P-1
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the same and in that process there is delay of about 20 days and
therefore this application for condonation of delay is being filed with a
prayer that the delay in re-filing the accompanying application i.e. IA
No.8702/2012 be condoned.
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Learned counsel for the plaintiff has not filed any reply to this
application. I have heard the argument, perused the application and the
proceedings.
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This application has been filed so causally that it does not convey any
such date or fact as on which date the previous application was filed, on
which date objections were raised by the Registry and on which date it
was taken back by the learned counsel for the defendant from the
Registry, what is name of the clerk of the counsel for the applicant who
got the Government job and in which department, when the counsel for the
applicant appointed the new clerk and how much is the exact delay in re-
filing of this application. All these facts are not mentioned in this
application. It appears that present application has been moved only for
the sake of moving an application and perhaps with the sole intention
that the applicant is only required to file the formal application
without mentioning any such reason and it in any case would be allowed by
the court.
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This court is of the considered opinion that such causal approach in
filing such an important application has to be avoided, irrespective of
the legal proposition that the court should adopt liberal approach while
deciding such application. As far as merits are concerned, law with
respect to condonation of delay is definitely quite liberal and it has
been held in various cases that unless and until delay in filing the
application is mala-fide or is an abuse of the process of the court such
application may be allowed by taking liberal approach as the endeavour of
the court should be to decide the matter on merits instead of deciding
the same on technicalities and in the present case it
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CS(OS) 457/2000 P-2
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appears that although there is casualness on the part of the defendant
but no mala-fide can be attributed on such facts or merits. Therefore,
irrespective of filing of such a vague application by the applicant for
condonation of delay of about 20 days, the application is allowed,
however, subject to cost of Rs.5,000/- upon the defendant to be deposited
in PM National Relief Fund by way of bank draft.
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This IA stands disposed off.
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IA No. 8702/2014 (under Sec. 151 CPC by defendant seeking recall of order
dated 07/09/2012)
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This is an application filed by defendant inter alia seeking recall of
order dated 07/09/2012 whereby this court had closed the opportunity of
defendant to cross examine the witness of the plaintiff. It is submitted
that on 07/09/2012, ld counsel for the defendant had requested the
plaintiff for cross examining its witness after lunch as the main counsel
for the defendant was busy in some other matter in the pre- lunch session
and further, that by the time the ld counsel for defendant could reach
the court, this court had already passed the order and the ld counsel for
defendant requested the Court Master for mentioning the matter which
request was declined. It is further submitted that in the order dated
07/09/2012 this court observed that opportunity was given to defendant to
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cross examine plaintiff?s witness on 23/03/2012. It is contended that the plaintiff had earlier filed an affidavit of evidence when there was
no defence / written statement of the defendant on record and the
defendant was under the impression that the plaintiff would file fresh
affidavit of its witnesses after framing up the issues but the plaintiff
only on 23/02/2012 for the first time had stated that his affidavit is
already on record and he would be adopting the same, and this court had
granted last
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CS(OS) 457/2000 P-3
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opportunity to the defendant for cross examining the plaintiff?s witness
on the next date of hearing and therefore there is an apparent error on
the face of record which state that various opportunities have been
granted to the defendant for cross examining the PW and such an
observation is factually incorrect.
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It is further stated that on 07/09/2012 no adjournment was sought by the
defendant and when the instant matter was called out for cross
examination of the witness, counsel for defendant was arguing a matter
before Hon?ble Division Bench ? I and as per Order XVII Rule 1 CPC, there
is no provision for closing the evidence and at the most the court had
only one option i.e. to proceed the defendant under the provision of
Order 9 CPC or in the alternative, the court ought to have adjourned the
matter to a suitable date. It is reiterated that the defendant was under
bonafide impression that the plaintiff would file fresh evidence in view
of order dated 15/07/2011 and that the defendant had not sought any
adjournment on 07/09/2012. It is also contended that if the order dated
07/09/2012 is not recalled, the defendant would suffer irreparable loss
and injury in view of illegality and mistake apparent on the face of it.
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Plaintiff has filed reply to this application taking the preliminary
objection that as per the record itself, the conduct of defendant has
been extremely negligent throughout and hence there is no justification
in recalling order dated 07/09/2012. It is submitted that order dated
07/09/2012 was passed by the court after waiting several hours for the
counsel for the defendant and after observing the past conduct of
defendant that the defendant is a government entity and there was gross
default on part of defendant in filing its defence earlier. It is
submitted that the affidavit of evidence had been on
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CS(OS) 457/2000 P-4
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record for many years before March 2012 and this fact was very much in
the knowledge of the defendant. It is argued that non appearance of ld
counsel for the defendant for the entire day only reflects utter
callousness on its part and it is also denied that the defendant had
acted bonafide and the plaintiff therefore prays for dismissal of this
application.
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I have heard the arguments and perused the record. The matter pertains
to the year 2000. The defendant earlier did not file its written
statement for one reason or the other and a bare perusal of various order
sheets reveal that the defendant had not been prosecuting the matter with
due diligence. Even the Hon?ble Court vide its order dated 16/12/2002
had closed its right to file the written statement and subsequently vide
order dated 07/02/2005, the written statement of defendant was ordered to
be taken on record. However, on 19/10/2005 it was observed that the
written statement so filed by the defendant was returned under
objections. As per order dated 03/03/2006 written statement was still
not re-filed by the defendant and on 07/07/2006 it was informed by ld
counsel for the defendant that the written statement is not traceable and
that in view of order dated 07/12/2005, the Registry has to place the
written statement on record. No written statement had come on record
till 18/09/2006 and it was stated by the defendant that written statement
so returned under objection by the Registry was never taken back by it
and on 13/11/2006 defendant was directed to file another set of written
statement which ultimately came on record on 10/01/2007 and it is ample
clear from all these order sheets that it was defendant who had been
delaying the proceedings.
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CS(OS) 457/2000 P-5
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So far as the present application is concerned, it is reasonable on the
part of the defendant to presume that the plaintiff would file fresh
affidavit as now plaintiff was supposed to rebut the contentions of the
defendant as earlier the right of the defendant in the light of written
statement of the defendant to file its written statement was closed by
the Hon'ble Court. It is also a matter of record that on 23/03/2012 for
the first time the plaintiff had informed about his intention to retain
the same affidavit as already filed on record. However, despite such
facts, PW1 was examined on that date and opportunity was given to
defendant for cross examining the said witness on 6th and 7th September,
2012. On 06/09/2012 matter was adjourned as the main counsel for
defendant was stated to be busy in some part heard matter and as far as
07/09/2012 is concerned ld. counsel for the defendant was admittedly not
present when the matter was called and keeping in view the absence of
learned counsel for the defendant on both the dates the right of
defendant to cross examine was closed. The contention of learned counsel
for the defendant that she did not pray for adjournment on 07.09.2012 is
not a valid contention as she was not present at all when the matter was
called and arguing that she has already conveyed the request to learned
counsel for the plaintiff is of no worth as it is not the prerogative of
the learned counsel for defendant to attend the court of her choice or at
the time when, she would feel free. It is otherwise well settled
principal of law that the busy-ness of a counsel in another court is no
ground to seek adjournment and it is bounden duty of a lawyer to adjust
his/her diary in such a way that she may defend the cases of all the
clients so listed on a particular day before different courts in an
effective matter. Even if the contention of ld counsel for the defendant
is accepted for the sake of arguments, it is not very clearly mentioned
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as to in which particular court or in which particular matter she was busy on both these dates i.e. 6.09.2012 and 07.09.2012. Learned counsel for
defendant has
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CS(OS) 457/2000 P-6
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further argued that this opportunity to cross examine PW-1 should not
have been closed on the earlier part of the day?s proceedings and the
court can only passed such order in post lunch session. I have perused
the record. It is clear that the court has not specified as to at what
time the opportunity of defendant to cross examine the plaintiff?s
witness was closed but it is clear that the matter was earlier listed on
06.09.12 on which date the matter was adjourned for 7.09.2012 which date
was fixed in March 2012 itself and therefore it cannot be valid
contention that the court should pass the order of closing the
opportunity only on post lunch session. Such liberty could have been
given if some of the official of DDA would have appeared and would have
informed the court with respect to the professional difficulty of the
counsel. In this case neither any official of DDA nor the learned counsel
for the defendant was present when the matter was called. However, since
the time of passing of such order is not mentioned, the defendant may be
entitled to certain benefit of doubt on this aspect and accordingly,
keeping in view the all such facts the present application is allowed
however, subject to cost of Rs. 10,000/- out of which Rs. 5,000/- is
payable to the plaintiff and Rs.5,000/- to be deposited with PM National
Relief Fund by way of bank draft and the defendant is given only one
last and final opportunity to cross examine PW1 and the excuse that the
counsel is unwell or is busy in another court would be no ground to seek
adjournment on the next date of hearing. Receipt of cost be filed in
the Registry before the next date of hearing, as per rules. It is further
ordered that if no cost would be deposited then the subjective and
conditional opportunity so granted to the defendant shall be deemed to
have not been granted.
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This application stands disposed off accordingly.
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CS(OS) 457/2000 P-7
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CS(OS) 457/2000
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Be renotified for cross examination of PW1 on 19th January, 2015.
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S.S. MALHOTRA (DHJS)
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JOINT REGISTRAR (JUDICIAL)
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AUGUST 16, 2014
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CS(OS) 457/2000 P-8
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$ 2
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