Delhi District Court
Sudhir Arya & Ors. vs . Sushil Arya on 1 April, 2015
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN, ADJ-04,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Civil Suit No. 54/2014
Sudhir Arya & Ors. vs. Sushil Arya
ORDER
1. By this order, I shall dispose of the two applications of the plaintiff i.e under Section 151 CPC dated 16.11.2013 and an application for review of the order dated 23.10.2013 i.e under Order 47 Rule 1 read with Section 114 of CPC dated 20.03.2015 alongwith application under Section 5 read with Section 14 of the Limitation Act of the same date.
2. In the application under Section 151 CPC, the plaintiff has prayed for recalling the order dated 23.10.2013 whereby the plaintiff's evidence has been closed and has sought permission to lead evidence of the plaintiff in support of their pleadings in the plaint.
3. It is stated in the application that on 23.10.2013, when the matter was listed for leading plaintiff's evidence, plaintiff had moved an application under Order 7 Rule 14 CPC to file on record a Gift-deed 2 which was executed on 13.08.2013 and was a necessary document for disposal of the present matter; while dismissing the application under Order 7 Rule 14 CPC vide order dated 23.10.2013, the opportunity to lead evidence by the plaintiff was also closed. It is further stated that on the said date, the plaintiff could not lead evidence as he had sought permission from the court to file the necessary additional documents on record and further on the previous dates, the plaintiff was not available for leading evidence due to his illness and his treatment as he has undergone a surgical operation in the U.S. It is , therefore, prayed that in the interest of justice, the plaintiff be given opportunity to lead evidence.
4. In reply to the said application, the defendant had controverted and denied the averments made in the application stating that the plaintiff has failed to lead evidence despite numerous opportunities availed by it and plaintiff has failed to show any cogent reason for not producing the evidence even on 23.10.2013 and the court had rightly closed the opportunity to lead the evidence. 3
5. The averments in the application regarding non-availability of the plaintiff due to his illness has been controverted and denied stating that he has failed to file any document to show that he has undergone any surgical operation and for that reason, he could not appear on 23.10.2013 for leading evidence. It is further stated that the defendant was in Delhi on 02.10.2013 as he had signed the affidavit which was filed alongwith the application under Order 7 Rule 14 CPC and it is stated that the application is misconceived and vexatious and deserves to be dismissed with heavy cost.
6. I have heard the Ld. Counsel for the applicant/plaintiff as well as Ld. Counsel for the respondent/defendant and also examined the record.
7. While hearing arguments of the application under Section 151 CPC, Ld. Counsel for the plaintiff on 04.03.2015, stated that 'he will not press the relief of recalling of the order with respect to the dismissal of the application under Order 7 Rule 14 CPC as he would seek appropriate remedy in law for the said relief. He has pressed the application under discussion only for reopening the evidence which was 4 closed by order dated 23.10.2013.
8. In support of its arguments regarding non-availability of the plaintiff due to illness having undergone a surgical operation, the Ld. Counsel has placed on record copies of medical certificate dated 17.07.2013 and 23.03.2015. The said certificate shows that the plaintiff was suffering from 'lipoma' which may represent NGO lipoma and was also biopsied. As per certificate dated 23.03.2015, he has attended the said Doctor in the U.S on 17.07.2013, 08.05.2013, 19.07.2013 and 19.08.2013.
9. Ld. Counsel for the plaintiff/applicant has relied upon the case of Salem Advocate Bar Association Tamilnadu vs. Union of India, reported as AIR 2005 Supreme Court 3353(1). In this case, the Hon'ble Apex Court was pleased to hold that "While examining the scope of proviso to O. 17 R. 1 that more than three adjournments shall not be granted, it is to be kept in view that proviso to O. 17, R.2 incorporating Cls. (a) to (e) by Act 104 of 1976 has been retained. Cl.
(b) stipulates that no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party. The proviso to O. 17, R.1 and O. 17, R. 2 have to be read 5 together. So read, O. 17 does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no 'restriction on number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. To save proviso to O. 17, R. 1 from the vice of Art. 17 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court in the extreme hard cases. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the Court by resorting to the provision of higher cost which can also include punitive cost can grant adjournment beyond three."
10. It is, therefore, argued on behalf of the plaintiff that in the given facts and circumstances and in the interest of justice, the plaintiff be given one more opportunity to lead his evidence.
11. Ld. Counsel for the defendant, on the other hand, strongly opposed the arguments on behalf of the plaintiff and submitted that 6 there are no grounds for showing a leniency upon the plaintiff as the plaintiff has failed to avail the numerous opportunities given to him for leading evidence and because of his failure to avail the said opportunities and the liberty given to him on various dates, the plaintiff has failed to lead evidence. It is further argued that the plaintiff has deliberately not filed the copy of the passport which would have shown that the plaintiff was very well in India and was able to lead evidence and has deliberately not led the evidence and for that reason also, he is not entitled to the indulgence of the court for exercising discretionary power under Section 151 CPC.
12. I have considered the rival submissions. The plaintiff has availed three opportunities i.e on 11.02.2011, 28.02.2012 and 22.11.2012 but did not lead evidence. On 07.05.2013, again an adjournment was sought by the plaintiff and an opportunity was granted to the plaintiff to lead evidence subject to cost of Rs. 1,000/-. On the fifth occasion, evidence was closed by my Ld. Predecessor vide order dated 23.10.2013, which gave rise to the filing of the present application.
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13. The present case is suit for declaration and partition of the property as plaintiff and defendants are brothers. In a suit for partition, each plaintiff is defendant and each defendant is plaintiff. The plaintiff has sought one more opportunity for evidence on the ground that he was incapacitated to lead evidence on the date when it was closed because he had been keeping ill-health and has undergone an operation in the U.S. Further, on the said date when the opportunity to lead evidence was closed, the application for filing additional document i.e. Gift-deed was filed and for that reason also on the said date, the plaintiff could not lead the evidence. Because of these facts and circumstances and in view of the law laid down in Salem Advocate Bar Association Tamilnadu vs. Union of India (Supra), I am of the considered opinion that end of justice requires that the plaintiff needs to be given one more opportunity to lead his entire evidence. The defendant can always be compensated in terms of cost for the delay and inconvenience caused to them. The application discussed above is allowed subject to cost of Rs. 5,000/- to be paid by the plaintiff to the defendant. The application under Section 151 CPC is disposed of accordingly in above terms.
8Order on the review application
14. In his application for review of the order dated 23.10.2013, the plaintiff/applicant has alleged that the impugned order needs to be reviewed as there is apparent mistake on the face of the record because the application under Order 7 Rule 14 was dismissed on the ground that the Gift-deed dated 12.08.2013 was within the knowledge of the plaintiff at the time of filing of the present suit. The Gift-deed was executed on 12.08.2013 and immediately the application was moved by the plaintiff under Order 7 Rule 14 CPC, therefore, it was not possible for the plaintiff that the said Gift-deed dated 12.08.2013 would be in his knowledge on the date of filing of the suit which has been filed on 22.02.2010. It is, therefore, prayed that the application under Order 7 Rule 14 CPC was needed to be allowed on merit and for that reason, order dated 23.10.2013 needs to be reviewed by this court.
15. Since the application for review has been filed on 21.03.2015 i.e after 17 months, hence, the same is accompanied by an application under Section 5 read with Section 14 of Limitation Act for condonation of delay and excluding the time taken in proceedings bonafide without jurisdiction.
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16. Reply to the review application has been filed. At the very outset, Ld. Counsel for the defendant has taken an objection for invoking Section 14 of the Limitation Act stating that the said provision is not applicable for the review of the order sought in the application and the plaintiff can file an application only under Section 5 of the Limitation Act. On this submission of the Ld. Counsel for the defendant, the Ld. Counsel for the plaintiff has stated that he does not press the application under Section 14 of the Limitation Act and confined himself to the relief sought under Section 5 of the Limitation Act only. Moreover, in the application under Section 151 CPC, as is found mentioned in Para No.3 of the present application, the plaintiff has not sought the relief of review of the order dated 23.10.2013 as is evident from the prayer clause, he has sought opportunity to reopen the evidence of the plaintiff only. For that reason, it cannot be said that the plaintiff is entitled to the exclusion of the said time seeking the review of the said order under Section 151 CPC. It is for that reason, Ld. Counsel for the plaintiff has made the submission that he does not press the exclusion of period under Section 14 of the Limitation Act and has confined his relief only under Section 5 of the Limitation Act. 10
17. There are no averments of showing sufficient cause to be considered by this court within the provision of Section 5 of the Limitation Act because it is simply mentioned in the application in Para No. 8 that there is sufficient cause for condonation of delay in filing the application for review of order dated 23.10.2013.
18. Ld. Counsel for the plaintiff has argued that the plaintiff could not file the review application earlier as he thought that same relief will be granted to him in the application under Section 151 CPC which was filed within the period of one month of the order dated 23.10.2013. Ld. Counsel for the plaintiff cannot be allowed to re- agitate the said argument because on 04.03.2012 when the part arguments were heard on the application under Section 151 CPC, Ld. Counsel for the plaintiff submitted that he will not press the relief of the recalling of the order with respect to the dismissal of the application under Order 7 Rule 14 CPC.
19. Ld. Counsel for the defendant, on the other hand, argued that the review application cannot be considered as the same is barred by limitation as it has been filed after a period of 17 months. It is 11 further argued that as per requirement of Section 5 of the Limitation Act, each day delay is to be explained by the plaintiff for showing sufficient cause under Section 5 of the Limitation Act.
20. I have considered the rival submissions. In AIR 1987 SC 1353, the Hon'ble Apex Court was pleased to hold that to explain every day's delay did not mean that a pedantic approach could be made and the doctrine must be applied in a rational common sense pragmatic manner. It was laid down that "when substantial justice and technical considerations are pitted against each otter, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in justice being done because of a non- deliberate delay."
21. In the present case, the order dated 23.10.2013 was passed in the presence of the Ld. Counsels appearing for the parties. Ld. Counsel for the plaintiff did not point out the execution of Gift-deed having been done recently and the same was not existing at the time of the filing of the suit. Moreover, the plaintiff has filed an application under Section 151 CPC on 18.11.2013 for recalling the order dated 12 23.10.2013 but in the said application, the plaintiff has not sought review of the said order or setting aside the said order so as to claim the relief of allowing the application under Order 7 Rule 14 CPC which has been dismissed because of alleged apparent error on the face of record as the Ld. Predecessor assumed that the said Gift-deed was in the knowledge of the plaintiff at the time of the filing of the present suit. The review application has been filed after a period of 17 months. This conduct of the plaintiff shows that the delay in filing the application was not a non-deliberate delay. It is for that reason, the plaintiff was required to explain the long delay in moving the present application so as to show sufficient cause for condonation of delay in filing the review application. Because of the above reasons, I am of the considered opinion that the plaintiff/applicant has failed to show sufficient cause for condoning the delay in moving the review application under discussion. The application under Section 5 of the Limitation Act is accordingly dismissed. Because of these reasons, the applicant/plaintiff is not entitled to seek the review of order dated 23.10.2013 as the relief so claimed is barred by limitation. Both the applications under Order 47 Rule 1 read with Section 114 CPC and 13 application under Section 5 of the Limitation Act stand disposed of accordingly in the above terms.
Announced in the open court. (RAJ KUMAR CHAUHAN)
Dated:01.04.2015 ADJ-04 (South)
Saket Courts/New Delhi