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Delhi High Court

Gunjan Kumar vs Vipin Parwanda & Anr on 14 September, 2015

Author: Manmohan Singh

Bench: Manmohan Singh

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Order delivered on: 14th September, 2015

+             I.A. No.10265/2015 in CS(OS) No.2509/2010

       GUNJAN KUMAR                                           ..... Plaintiff
                   Through            Mr.M.Dutta, Adv.

                         versus

       VIPIN PARWANDA & ANR                    ..... Defendants
                    Through Ms.Reena Jain Malhotra, Adv. with
                            Ms.Shruti Ahuja, Adv.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

1. The abovementioned application has been filed by defendant No.1 under Section 151 CPC seeking restoration of the Chamber Appeal being O.A. No.51/2014 and the accompanying application being I.A. No.5953/2014, which were dismissed by this Court in default and for non-prosecution by order dated 21st April, 2015. Counsels for the parties have also addressed their submissions in O.A. as well as in the application for condonation of delay.

2. It is stated in the application that on 21st April, 2015, the counsel for defendant No.1 could not reach the Court as she was held up in the urgent matter before the Debts Recovery Tribunal. A junior Advocate was supposed to appear in the matter for the purpose of adjournment. However, neither the junior Advocate appeared before Court nor defendant No.1 who was also directed to be present in the CS (OS) No.2509/2010 Page 1 of 4 Court. It is further stated that the non-appearance on the part of the Advocate was neither wilful nor deliberate. Even otherwise, the defendants have a good case on merits.

3. The plaintiff has strongly opposed the prayer made in the application as well as in O.A. filed against the order dated 10th September, 2013 passed by the Joint Registrar. The present suit has been filed by the plaintiff for injunction and possession. The case of the plaintiff is that despite of execution of the sale deed and receipt of the entire sale consideration, the possession of the suit property has not been handed over to the plaintiff by the defendants who are the sellers of the suit property. Defendants No.1 and 2 are husband and wife and they are equal co-owners of the suit property. Defendant No.1 executed the sale deed for himself as well as on behalf of defendant No.2 (his wife) pursuant to the registered Power of Attorney executed by her. By this action, the plaintiff is also seeking possession of the suit property.

4. The following are the relevant dates from the date of filing of the suit till date for the purpose of disposal of the Chamber Appeal and the pending applications, the same are mentioned herein below:-

 Date(s)                             Events
 10.12.2010       Summons were issued in the suit
 20.05.2011       Despite service, none appeared on behalf of the
                  defendants. They were proceeded ex parte.

 22.02.2012       This Court recorded that despite the defendants

being proceeded ex parte, no application has been filed by the defendants for setting-aside.

11.01.2013 Ex-parte evidence of the plaintiff was recorded 20.03.2013 This Court set-aside the order dated 20th May, 2011 wherein the defendants were proceeded ex parte. As a last opportunity, they were permitted time till 02.04.2013 to file their written statement.

10.09.2013 None appeared on behalf of the defendants to conduct admission/denial of the documents. Despite the lapse/expiry of the prescribed time, no written statement was filed in accordance with law.

Consequently, their right to file the written statement was closed.

13.01.2014 The defendants refused to carry out admission/denial of the documents. Consequently, the documents of the plaintiff are deemed to be admitted by the defendants and admission/denial concluded.

21.04.2015 Chamber Appeal registered as O.A. 51/2014 filed against the order dated 10.09.2013 closing the defendants' right to file their written statement, was dismissed by this Court when none appeared for the defendants on 25.11.2014, 24.02.2015 and 21.04.2015. Even otherwise, the Chamber Appeal had been filed after a delay of more than 180 days.

19.05.2015 Pursuant to an application being I.A. No.10265/2015 seeking restoration of O.A. No.51/2014, this Court dissatisfied with their explanation regarding their absence on three respective dates, directed the defendants to file a better affidavit.

5. The reasons given in the affidavit are unsatisfactory as there is default on the part of the defendants at the first instance and the same is being committed for the last more than 4 years. Counsel for the plaintiffs has pointed out that since it is the case of possession of CS (OS) No.2509/2010 Page 3 of 4 the suit property, the defendants have been intentionally and deliberately delaying the proceedings. Even from the order sheets, it appears that the defendants are attempting to delay the proceedings on one pretext or the other for the last more than 4 years. They have interfered with the proceedings when the same are to be decided on merits. They have also not appeared when the matter was taken up.

6. Having gone through the grounds mentioned in the Chamber Appeal and contents of the present application, there is no merit. Accordingly, the Chamber Appeal as well as the application filed by the defendants is dismissed.

List this matter on 16th November, 2015 for final disposal, in the category of "Short Cause".

(MANMOHAN SINGH) JUDGE SEPTEMBER 14, 2015 CS (OS) No.2509/2010 Page 4 of 4