Delhi District Court
Girdhari Lal Aggarwal vs Pradeep Aggarwal on 16 October, 2023
IN THE COURT OF SHRI SUBHASH KUMAR MISHRA
ADDL SESSIONS JUDGE-07, SOUTH EAST DISTRICT:
SAKET COURT: NEW DELHI
CR No. 216/2018
1. Sh. Girdhari Lal Aggarwal
S/o Late Sh. Fateh Chand Aggarwal
2. Smt. Manju Aggarwal
W/o Sh. Girdhari Lal Aggarwal
Both residents of:-
436, 1st Floor Main,
Mathura Road, Jangpura,
Bhogal, New Delhi-110014
3. M/s Girdhari Lal & Sons
Petrochem Pvt. Ltd.
Through Girdhari Lal Aggarwal
Managing Director/
Authorized Representative
Having its Regd. Office at:
437, Basement, Main
Mathura Road, Jangpura, Bhogal
New Delhi-110014
..........Revisionists
Vs.
1. Sh. Pradeep Aggarwal
S/o Late Sh. Jai Prakash Gupta
Director of M/s Compact Pack Moulders Pvt. Ltd.
R/o 13, Ground Floor,
Vigyan Lok, Delhi-110092
2. M/s Compact Park Moulders Pvt. Ltd.
Office at:
13, Ground Floor,
Vigyan Lok, Delhi-110032
Girdhari Lal Aggarwal & Ors. Vs. Pradeep Aggarwal & Anr. Page no.1 of 6
Through Sh. Pradeep Aggarwal,
Authorized Representative/
Director
..........Respondents
Date of institution : 22.03.2018
Judgment reserved on : 16.10.2023
Judgment pronounced on : 16.10.2023
JUDGMENT
1. Vide this judgment, the revision challenging the order of Ld. Trial Court, dated 09.01.2018, passed in case number 612452/2016, whereby the complaint of the complainants/petitioners (hereinafter referred to as 'complainants') was dismissed for non-appearance, will be decided.
2. In the instant case, vide its order dated 06.04.2013, the Ld. Trial Court had dismissed the application of the complainants moved under Section 156(3) of Cr.P.C seeking direction to police for registration for FIR. Vide the said order, the complainants were directed to examine their witnesses under Section 200 Cr.P.C. Accordingly, the complainants examined three witnesses wherein complainants namely Smt. Manju Aggarwal and Sh. Girdhari Lal examined themselves as CW1 and CW2 respectively and Sh. V.C. Mishra was examined as CW3. Thereafter, the arguments on the point of summoning was addressed on behalf of the complainants, however, vide the impugned order, the complaint was dismissed for non appearance of the complainants.
Girdhari Lal Aggarwal & Ors. Vs. Pradeep Aggarwal & Anr. Page no.2 of 6
3. Counsel for the complainants argued that non appearance on behalf of the complainant on 21.08.2017 and on 09.01.2018 was due to fault of the court clerk because he had not informed the date of hearing to the counsel.
He also argued that prima facie the complainants have been diligently pursuing the complaint and due to the mistake of the court clerk, the appearance could not be entered on behalf of the complainants on the aforesaid dates.
4. Per contra, counsel for the respondents argued that the conduct of the complainants had not been fair throughout the proceedings and they were not diligently pursuing the complaint before the Ld. Trial Court.
He argued that out of 42 dates of hearing before the Ld. Trial Court, the complainants remained absent on 22 dates which clearly shows that the approach of the complainants was lackadaisical.
He also argued that even before this court, none for the complainants appeared to advance the arguments on several dates.
He further argued that sufficient cause has not been shown on behalf of the complainants for their non appearances and the reason explained on behalf of the complainants for non appearances before the Ld. Trial Court is false.
He also argued that the suit of the complainants filed in the Court of Ld. Senior Civil Judge, South-East District, Saket Courts, Delhi, had also been dismissed for their non appearance and even their application moved under Section 5 of the Limitation Act and under order 9 Rule 9 CPC had also been Girdhari Lal Aggarwal & Ors. Vs. Pradeep Aggarwal & Anr. Page no.3 of 6 dismissed.
5. In support of his arguments, counsel for the respondents has relied on the judgment of Hon'ble High Court of Bombay in Ramzan Khan Vs. Khadim Tours and Travels and Anr, 2019 SCC Online BOM 709.
6. I have heard the arguments and have gone through the trial court record including the judgment relied on.
7. It is pertinent to mention that in the instant case, complainants had already examined themselves as CW1 and CW2 respectively. Apart from them, Sh. V.C. Mishra was also examined as CW3.
Perusal of order dated 20.05.2017 and 28.06.2017, clearly shows that arguments had also been addressed on behalf of the complainants, on the point of summoning and judgment in support of the argument had also been cited. Vide order dated 28.06.2017, the matter was listed on 21.08.2017 for order on the point of summoning.
Order dated 28.06.2017 reads as under:
"Present: Ld. Counsel for the complainant Mr. Punit Goel.
Further arguments on summoning heard. Dates and events filed by the Ld. Counsel for complainant along with three judgments. Same be taken on recording.
Be put up for summoning on 21.08.2017."
Girdhari Lal Aggarwal & Ors. Vs. Pradeep Aggarwal & Anr. Page no.4 of 6
8. Perusal of record further shows that on 21.08.2017, the Presiding Officer of the Ld. Trial Court had been transferred and hence, the matter was again listed for arguments to be addressed by the complainants. However, no notice thereof was issued to the complainants in this regard.
9. Once, the complainants had concluded the arguments on the point of summoning and the matter was listed for order vide order dated 21.08.2017, the complainants must have been under presumption that appearance on their behalf was not required any longer and the court was to pass an order.
Further, after addressing the arguments on the point of summoning, the presence of the complainants was not required for any fruitful proceedings before passing of any order.
10. Vide order dated 21.08.2017, Ld. Successor of Ld. Trial Court had listed the matter for further arguments. However, no one appeared before the Ld. Trial Court on the next date of hearing i.e. 09.01.2018 and therefore, the matter was dismissed in default/for non appearance of the complainants.
11. The complainants were not aware of the factum of change of the Presiding Officer and the order dated 21.08.2017, whereby the matter was listed for fresh arguments on the point of summoning. Hence, Ld. Trial Court should have issued court notice to the complainants for addressing fresh arguments. However, Ld. Trial Court instead of issuing court notice to the complainant, dismissed the complaint in default/non appearance of the complainants.
Girdhari Lal Aggarwal & Ors. Vs. Pradeep Aggarwal & Anr. Page no.5 of 6
12. This court is of view that once the arguments was addressed on behalf of the complainants on the point of summoning, Ld. Successor of the Trial Court should have issued court notice to the complainants for their appearance and for fresh arguments because the complainants would have been under impression that Ld. Trial Court was to pass an order on the basis of the arguments addressed earlier.
13. Hence, by not issuing fresh court notice to the complainants for fresh arguments on the point of summoning, in the circumstances where the arguments had already been addressed on behalf of the complainant, Ld. Trial Court committed an impropriety.
14. Having discussed as above, the revision stands allowed and the impugned order dated 09.01.2018 is set aside. Ld. Trial Court to hear fresh arguments on the point of summoning and to proceed, as per rules.
15. TCR be sent back along with a copy of this order. File be consigned to record room, as per rules.
(Subhash Kumar Mishra) Additional Sessions Judge-07, South-East, Saket Courts, ND 16.10.2023 Girdhari Lal Aggarwal & Ors. Vs. Pradeep Aggarwal & Anr. Page no.6 of 6