Delhi High Court - Orders
Yudhvir Malik & Ors vs Bhan Singh & Ors on 14 February, 2019
Author: Anu Malhotra
Bench: Anu Malhotra
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 23/2019 and CM No. 702/2019
YUDHVIR MALIK & ORS ..... Petitioners
Through: Mr. Prashant Bhardwaj, Advocate
versus
BHAN SINGH & ORS ..... Respondents
Through: Mr.H. S. Buttan, Advocate
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 14.02.2019 The respondents No. 2 and 3 arrayed on record are apparently proforma parties being the defendants to the suit CS No. 1349/16 pending before the learned ACJ/ARC, Central.
Vide the present petition, the petitioners assail the impugned order dated 12.12.2018 of the learned ACJ/ARC Central, whereby the application filed by the petitioner arrayed as defendants No. 1 and 2 to the said suit under Order XVIII Rule 17 CPC, seeking recalling of the order dated 29.11.2018 vide which the defence evidence of the said defendants No.1 and 2 i.e. the present petitioners was closed with it having been observed to the effect that though previous costs of Rs.1200/- were paid but no defence evidence was led and that it was noted that it was a 10 years old case and ample opportunities have been granted to the defendants to adduce evidence and that the plaintiffs evidence was closed on 25.1.2018 and thereafter there had been two dates granted to the defendant to adduce evidence which the defendants No. 1 and 2 have not led, was declined.
It has been submitted on behalf of the petitioners herein as also reflected through the impugned order dated 12.12.2018, that on 29.11.2018, the date on which the matter was fixed for defence evidence for the third time, the defence evidence was closed and it has been submitted on behalf of the petitioners that the costs as imposed previously were paid on the said date but that the witnesses could not be examined in as much as the counsel for the defendant No.1 who was also the counsel for the legal representative of the deceased defendant No.2 could not put in appearance due to the bereavement in the family of the main counsel, in as much as he also filed a document i.e. a Shok Sandesh of one Sh. Ram Bilas Bansal who died on 17.11.2018 whose Tehrvi (Rasam Pagri) was to be held on 29.11.2018 at Model Town-2, Delhi -9 from 3:00 p.m to 4:00 p.m. and that as the said deceased was the uncle of the wife of the main counsel, he could not put in appearance on the date 29.11.2018.
The learned Trial Court vide the impugned order has observed to the effect that the programme of Rasam Pagri was to be conducted at Aggarwal Sadan, D-13-A/31, Model Town-II, Delhi-110009 from 3:00 p.m. to 4:00 p.m. while the mater was fixed before the Court at 10:00 a.m. and further Model Town-II was not far from Tis Hazari Courts and thus there was no reason for non-appearance of the counsel for the defendant No.1 and legal heirs of defendant defendant No.2 before the Court and that there were dilatory tactics being adopted repeatedly.
Though it does appear that on the two dates prior to the date 29.11.2018, i.e. on 19.4.2018 when the matter was fixed for defence evidence though the list of witnesses had been filed, the evidentiary affidavit of DW1 was not filed which was stated to be due to a marriage in the family due to which costs were imposed whereafter on 26.7.2018 it was stated that DW-1 had a fracture in his left hand, it is submitted on behalf of the respondent No.1 that there were no documents in relation to factum of marriage nor in relation to the fracture in the hand of the said witness that had been submitted on the two dates, yet it cannot be overlooked that on the date 29.11.2018, it had been averred on behalf of the petitioners herein that the counsel could not put in appearance due to the bereavement of a close relative of his wife.
In these circumstances, in the interest of justice, one opportunity is granted to the petitioners herein to adduce their evidence before the learned Trial Court on the date to be fixed by the learned Trial for such evidence of the defendants No. 1 and 2 subject to payment of costs of Rs.25,000/- to be paid by the petitioners to the respondent before the learned Trial Court.
The petition is disposed of accordingly.
Copy of the order be given Dasti, as prayed.
ANU MALHOTRA, J FEBRUARY 14, 2019/SV