Delhi High Court - Orders
Nagendra Mohan Dass vs Archana Dass on 9 May, 2023
Author: Jyoti Singh
Bench: Jyoti Singh
$~66
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. 116/2023
NAGENDRA MOHAN DASS ..... Petitioner
Through: Mr. Siddhartha Iyer, Advocate.
versus
ARCHANA DASS ..... Respondent
Through: Mr. Rahul Sharma, Mr. Lokesh
Chopra, Mr. Darshnik Narang and
Ms. Ruksaar Saifi, Advocates.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
ORDER
% 09.05.2023 CM APPL. 23557/2023 (Exemption)
1. Allowed, subject to all just exceptions.
2. Application stands disposed of.
C.R.P. 116/2023 & CM APPL. 23556/2023 (stay)
3. Present revision petition lays a challenge to an order dated 13.04.2023, passed by the Trial Court. Petitioner herein is the Defendant before the Trial Court and Respondent is the Plaintiff and parties are hereinafter referred to by their litigating status before the Trial Court.
4. Issue notice.
5. Mr. Rahul Sharma, learned counsel accepts notice on behalf of the Respondent.
6. Perusal of the impugned order indicates that on 13.04.2023, two applications were listed for hearing before the Trial Court, one under Order 12 Rule 6 CPC filed by the Plaintiff and the other under Order 7 Rule 11 CPC preferred by the Defendant. Matter was scheduled for arguments at 12.00 PM and counsel for the Defendant sought a Signature Not Verified Signed By:KAMAL KUMARC.R.P. 116/2023 Page 1 of 5 Signing Date:09.05.2023 20:43:22 passover till 03.00 PM on the ground that the arguing counsel was held up in the Supreme Court. Passover was strongly objected to by counsel for the Plaintiff.
7. Trial Court by the impugned order declined to passover the matter on the ground that there was another case fixed at 02.00 PM for final arguments. Court heard the arguments canvassed on behalf of the Plaintiff and rejected the request for adjournment for hearing arguments on behalf of the Defendant, given the old age of the Plaintiff. Defendant was given the liberty to file written synopsis within 07 days from the date of the order. Liberty was also granted to the parties to file the affidavit in terms of the previous order, during the course of the day. After hearing arguments on behalf of the Plaintiff, Trial Court posted both the applications for orders on 10.05.2023.
8. Assailing the impugned order, counsel for the Defendant submits that for no fault of the Defendant, he has been denied the opportunity of oral hearing, which is violation of principles of natural justice. It is submitted that the counsel was held up before the Supreme Court in a matter, which had been preponed on account of 14.04.2023 being declared as a holiday. In this backdrop, a request was made to the Trial Court for a short accommodation for passing over the matter and even assuming that the Trial Court had another matter fixed post-lunch, the case could have been adjourned to a day or two thereafter, instead of closing the right of the Defendant to address arguments. Defendant has filed an application under Order 7 Rule 11 CPC while Plaintiff has sought decree on alleged admission and if the Defendant is not heard, on both counts he will suffer irreparable injury. It is also submitted that the application under Order 12 Rule 6 CPC was filed only in October, 2022, to which a reply was Signature Not Verified Signed By:KAMAL KUMARC.R.P. 116/2023 Page 2 of 5 Signing Date:09.05.2023 20:43:22 promptly filed by the Defendant. Plaintiff has filed reply to the application under Order 7 Rule 11 CPC. Matter was earlier listed before the Court on 29.03.2023 when time was sought to file rejoinder to the application under Order 7 Rule 11 CPC and after which both applications were posted for hearing on 13.04.2023. Pleadings are complete in the applications and counsel for the Defendant had every intent to argue the applications and had only sought a short accommodation for a passover since his matter in the Supreme Court was at item No. 54.
9. Counsel for the Plaintiff, who appears on advance copy of the revision petition, defends the impugned order and submits that the Defendant is only seeking to prolong the litigation, which is prejudicing the Plaintiff who is an old lady and no infirmity can be found with the impugned order.
10. I have heard the learned counsels for the parties and examined their respective contentions.
11. It is evident from a perusal of the impugned order that applications under Order 12 Rule 6 CPC and Order 7 Rule 11 CPC were fixed for arguments on 13.04.2023 at 12.00 PM. From a reading of the order, there is merit in the stand of learned counsel for Defendant that he had not sought an adjournment and only a request for passover was made since he was held up before the Supreme Court.
12. Counsel for the Defendant has categorically averred in the revision petition that he had to appear before the Supreme Court on account of his matter being listed on 13.04.2023 due to the earlier date on which the matter was scheduled to be fixed, being declared as a holiday. Details of the matter listed before the Supreme Court have also been given in the petition being Item No. 54 in Court No. 11.
Signature Not Verified Signed By:KAMAL KUMARC.R.P. 116/2023 Page 3 of 5 Signing Date:09.05.2023 20:43:22Order-sheet of 13.04.2023 reflecting the appearance of the counsel in SLP (C) No. 7718/2023 is also annexed to the petition as Annexure A/9.
13. Trial Court has evidently closed the right of the Defendant to address arguments on the applications on two-fold grounds viz.: there was another matter fixed for final arguments at 02.00 PM and the age factor of the Plaintiff. In my considered view, the impugned order is untenable and cannot be sustained. Defendant has a right to address arguments on both the applications and it needs no gainsaying that if the applications are decided against the Defendant, serious consequences in law would follow. In these circumstances, it was imperative for the Trial Court to have given an opportunity of hearing to the counsel for the Defendant. Even if the Trial Court had another matter fixed for final arguments post-lunch, the correct course of action was to have adjourned the applications to a short date. There can be no justification for closing the right of the Defendant to canvass oral arguments. Trial Court may be wholly justified in ensuring expeditious disposal of the suit as also being sensitive to the age factor of the Plaintiff, but this cannot be at the cost of the Defendant, who is also a party to the lis and it is the duty of the Courts to ensure that balance is maintained and all parties to the case are given an equal opportunity of being heard. 'Justice must not only be done, but must be seen to be done', is a principle which forms the foundation of any judicial system.
14. Accordingly, the impugned order is quashed and set aside. It is directed that the Trial Court shall hear the arguments on both the applications aforementioned, on 22.05.2023 and after hearing both sides, proceed with the matter, in accordance with law. There is some contest about the direction of the Trial Court to file the affidavit in Signature Not Verified Signed By:KAMAL KUMARC.R.P. 116/2023 Page 4 of 5 Signing Date:09.05.2023 20:43:22 terms of previous orders. It is open to the parties to address arguments on the necessity of filing the said affidavit and the Trial Court will take a considered decision on this aspect.
15. Revision petition is disposed of along with the pending application with the aforesaid directions, making it clear that this Court has not expressed any opinion on the merits of the case and it is open to the Trial Court to decide both the applications, in accordance with law.
JYOTI SINGH, J MAY 09, 2023/shivam Signature Not Verified Signed By:KAMAL KUMARC.R.P. 116/2023 Page 5 of 5 Signing Date:09.05.2023 20:43:22