Delhi High Court - Orders
Ghanshyam Batheja vs Raj Kumari & Others on 21 November, 2022
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~44
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 396/2012
GHANSHYAM BATHEJA ..... Plaintiff
Through: Mr. Vijay Zarein, Advocate for LRs
of transposed plaintiff.
versus
RAJ KUMARI & OTHERS ..... Defendants
Through: Mr. Mohit Bhardwaj, Advocate for
D-2 to 7.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
ORDER
% 21.11.2022 I.A. 19235/2022 (U/S 151 of CPC, 1908)
1. The present application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the defendant Nos. 2 to 7 seeking recall of the Order dated 11th October, 2022.
2. It is submitted in the application that the issues on the present case were framed on 04th December, 2019 with the directions to the transposed plaintiff to adduce the evidence. The list of witnesses along with the affidavit of evidence of PW1 was filed along with the evidence affidavit of Shri Raj Kumar, PW2 and Shri Om Prakash, PW3.
3. It is claimed that right to open the evidence has already been availed by the plaintiff on 04th December, 2019 by suppressing the material facts that the transposed plaintiff had no right to file the Application under Order XVIII Rule 1 of the Code of Civil Procedure, 1908.
Signature Not Verified Digitally Signed By:PRIYANKA ANEJA Signing Date:23.11.2022 12:06:014. It is submitted that the transposed plaintiff expired on 02nd November, 2020, and the legal representatives had been brought on record. Without closing the evidence of the plaintiff, the matter has been listed for defendants' evidence to the prejudice of the defendants.
5. It is asserted that the Order is prejudicial to the interest of the defendant Nos. 2 to 7 as the right to cross-examine the plaintiff's witness has already accrued upon the defendant Nos. 2 to 7 which would demolish the case of the transposed plaintiff who is avoiding to get themselves cross- examined. The material facts have been concealed and suppressed that the plaintiff evidence has already commenced. On 10th February, 2020, the PW1/Shri Ghanshyam Batheja was present since his evidence was not on record, though stated to have been filed. The mater was adjourned for cross- examination of plaintiff's witness on 02nd July, 2020.
6. It is submitted that no notice of the application or an opportunity to file a reply was ever given to the defendants. On 06th September, 2022, the Court was pleased to pass the order for reframing of the issues.
7. Vide Order dated 11th October, 2022, the application filed on behalf of the plaintiff was allowed in limine on the pretext that out of 8 reframed issues, onus of proving of 7 issues was on the defendant Nos. 2 to 7.
8. The application filed on behalf of the transposed plaintiff is gross abuse of the process of the Court. Hence, the present application has been filed for recalling the Order dated 11th October, 2022 and for directing the plaintiff to lead his evidence in terms of the previous orders of this Court.
9. Learned counsel on behalf of the plaintiff has opposed the application and has submitted that this kind of application under Section 151 of the Code of Civil Procedure, 1908 for recalling of previous orders is not Signature Not Verified Digitally Signed By:PRIYANKA ANEJA Signing Date:23.11.2022 12:06:01 maintainable as it is in the nature of review, as has been held in the case of P.U.R. Polyurethane Products (P) Ltd. vs. Geeta Bhargava 2006 (133) DLT 58.
10. Reliance has also been placed on by the plaintiff in Rajnish Gupta & Anr. vs. Mukesh Garg 202 SCC OnLine Del 603, wherein it was observed that it is not necessary in every suit that the Court cannot direct the defendant to lead the evidence first.
11. Further reliance has been placed on Achala Mohan vs. Jayashree Singhu CM(M) No. 255/2020.
12. Submissions heard.
13. Learned counsel on behalf of the plaintiff also states that no time on any date was sought on behalf of the defendants for filing a reply to the application.
14. The first aspect which is of significance is that it is claimed that there was no opportunity given to the defendants for filing the reply and the application was decided in limine.
15. First and foremost, learned counsel had appeared on behalf of the defendants and had addressed the arguments. There is no requirement under law that for every application that may be filed, a reply is required to be filed by the opposite counsel. This is more so, when the questions involved was essentially concerning the procedures and law and not of facts.
16. Submission made in the application about non-representation or submission on behalf of the defendants is absolutely not borne out from the record.
17. The present application has been filed under Section 151 of the Code of Civil Procedure, 1908 for recalling the earlier order which is more in the Signature Not Verified Digitally Signed By:PRIYANKA ANEJA Signing Date:23.11.2022 12:06:01 nature of review. This omnibus application under Section 151 of the Code of Civil Procedure, 1908 is not maintainable as has been also held in the case of P.U.R. Polyurethane Products (P) Ltd. (supra).
18. The only ground on which a review of the earlier Order dated 11th October, 2022 is sought is that the evidence of the plaintiff has already commenced and the matter is listed for cross-examination and thus, there is no justification for asking the defendants to first lead the evidence. In this regard, it may be noted that it was clearly observed in the previous order that the onus of all the substantial issues is on the defendants. The onus of proving the only issue on the plaintiff is in regard to the rendition of accounts. The entire case hinges on the defence as has been propounded by the defendants in their Written Statement.
19. There is no merit in the present application, which is hereby dismissed accordingly.
I.A. 19239/2022 (U/O VII Rule 11 of CPC, 1908 by the defendant Nos. 2 to 7 for dismissal of the Suit) List before the Joint Registrar for completion of pleadings on 06th December, 2022, the date already fixed.
NEENA BANSAL KRISHNA, J NOVEMBER 21, 2022 S.Sharma Signature Not Verified Digitally Signed By:PRIYANKA ANEJA Signing Date:23.11.2022 12:06:01