Delhi District Court
Bal Kishan Sharma vs ) North Delhi Municipal Corporation on 26 October, 2015
IN THE COURT OF SH. GURVINDER PAL SINGH
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
RCA - 49/2015
Unique I. D. No. 02401C0553912015
Bal Kishan Sharma,
S/o Late Sh. Din Dayal Sharma,
Shop No. 5354, Laddu Ghati, Pahar Ganj,
New Delhi110055.
......Appellant
Versus
1) North Delhi Municipal Corporation,
Through its Commissioner,
Dr. Shyama Prasad Mukherjee,
Civic Centre, Minto Road, New Delhi.
2) Sh. Kishori Lal,
R/o 5 Doctor Lane, Gole Market,
New Delhi.
3) Smt. Annu,
R/o 5 Doctor Lane, Gole Market,
New Delhi.
RCA49/2015
Balkishan Sharma Vs. NDMC & Ors. Page 1 of 7
4) Sh. Anil @ Leelu,
R/o 4487, Second Floor, Gali Bhagat Singh,
Pahar Ganj, New Delhi110055.
.......Respondents
Date of institution of appeal : 13.10.2015
Date of reserving the order : 14.10.2015
Date of pronouncement of order : 26.10.2015
O R D E R
1. The present appeal is directed against the impugned order of Ld. ASCJ (Central), dated 09.09.2015, thereby dismissing the application no. M. No. 12/2005 under Order IX Rule 9 of the Code of Civil Procedure (in short CPC), moved on behalf of appellant/plaintiff for restoration of suit of appellant/plaintiff for permanent and mandatory injunction, bearing Suit No. 239/14, titled "Bal Kishan Sharma Vs. North DMC & Ors."
2. Feeling aggrieved with the judgment of the trial court, present appeal was preferred by the appellant/plaintiff on the grounds that RCA49/2015 Balkishan Sharma Vs. NDMC & Ors. Page 2 of 7
(i) the case was at the stage of arguments on application for interim stay and the plaintiff was under the impression that plaintiff's Counsel Sh. A.P. Aggarwal might have appeared on 14.01.2015, when the case was listed for arguments. On 12.02.2015, appellant/plaintiff visited the office of his Counsel and came to know about the death of Sh. A.P. Aggarwal, Counsel on 17.09.2015; (ii) appellant/plaintiff never received any notice in that regard at the shop of the appellant/plaintiff and therefore the non appearance of appellant/plaintiff on 14.01.2015 was due to ignorance of death of his Counsel; (iii) appellant/plaintiff could not have appeared on 14.01.2015 as appellant/plaintiff was harboring his wife, who was suffering from depression since May 2014 and could not leave her alone;
(iv) appellant/plaintiff could not have any reason to believe that appellant's/plaintiff's presence would be required at the stage of arguments on application under Order XXXIX Rule 1 & 2 CPC as his Counsel had told him that his (appellant's/plaintiff's) presence would not be required at arguments stage but would be required at Evidence stage;
(v) nonmentioning of appellant's/plaintiff's residential address in suit was due to bonafide omission on part of the earlier Counsel for appellant/plaintiff and he may not suffer for the same; (vi) Trial Court RCA49/2015 Balkishan Sharma Vs. NDMC & Ors. Page 3 of 7 failed to appreciate that nonappearance of appellant/plaintiff was neither intentional nor deliberate; and (vii) substantive rights of appellant/plaintiff may not be defeated on account of procedural technicalities. Appellant/plaintiff prayed for setting aside of the impugned order and restoring of the suit.
3. I have heard the arguments of Sh. Rohit Valecha, Ld. counsel for appellant/plaintiff, perused the record of this appeal and the entire record of the trial court received on requisition and have given my thoughts to the contentions put forth. Ld. counsel for appellant/plaintiff argued in terms of averments of appeal seeking setting aside of impugned order.
4. Perusal of Trial Court Record reveals that on dates of hearing starting from 23.05.2014 till 14.01.2015, not on a single date of hearing appellant/plaintiff ever appeared before the Trial Court in 10 dates of hearing. On Trial Court Record in the address form plaintiff provided his address as follows : RCA49/2015 Balkishan Sharma Vs. NDMC & Ors. Page 4 of 7 "Bal Kishan Sharma, S/o Sh. Deen Dayal Sharma, 5354, Laddu Ghati, Pahar Ganj, New Delhi110055"
5. There was no other address of appellant/plaintiff with the Trial Court. Court notice sent to plaintiff returnable for 10.12.2014, finds report of process server on oath that on visit on 19.11.2014 the premises was found in dilapidated condition, none residing there and neighbours disclosed that earlier plaintiff was residing there and had left for place unknown.
6. There was no impediment in the way of appellant/plaintiff for placing on record his residential address of Badar Pur in address form before Trial Court, as it is so mentioned in the address form in this appeal.
7. Sh. Yogesh Lakra appeared as Proxy Counsel for appellant/plaintiff and stated before Trial Court on 17.10.2014, that he had sent a notice to appellant/plaintiff, consequent upon death of Sh. A.P. Aggarwal, Ld. Counsel for appellant/plaintiff on 17.09.2014. The suit of plaintiff was fixed for dates of hearing viz., 18.09.2014; 17.10.2014; and RCA49/2015 Balkishan Sharma Vs. NDMC & Ors. Page 5 of 7 10.12.2014 before it was finally dismissed in default on 14.01.2015, by the Trial Court and on no date of hearing amongst these dates of hearing, appellant/plaintiff ever bothered to either make inquiries from the Court in person or through website of Delhi District Courts or through Counsel and/or Proxy Counsel with respect of the stage of the matter and proceedings in the Court as were required by him to be done in the matter. It has already been earlier observed herein above, that not on a single date of hearing in the Court, appellant/plaintiff ever bothered to appear. If appellant/plaintiff did not appear in Court having entrusted the matter to his Counsel, yet being litigant, he was responsible to inquire from his engaged Counsel as to what was required to be done on his part for further progress of his filed case. Diligence of appellant/plaintiff is absent on face of record. Per contra, negligence of appellant/plaintiff in prosecuting his case is writ large on the face of record. With respect to alleged medical condition of wife of plaintiff in May 2014, or later thereto, no medical prescription, medical certificate or laboratory examination report or any other medical investigation conducted, was either placed before the Trial Court nor is annexed with this appeal. Appellant/plaintiff cannot take shelter behind the plea of alleged medical RCA49/2015 Balkishan Sharma Vs. NDMC & Ors. Page 6 of 7 condition of his wife, which is apparently devoid of credence for want of supportive documents. Lack of diligence on part of appellant/plaintiff makes it crystal clear of there existing no sufficient cause for his non appearance before Trial Court on 14.01.2015 when the case was dismissed in default and for nonprosecution. Appeal lacking merits, being not maintainable is hereby dismissed. No order as to costs.
8. File of this appeal be consigned to record room and the requisitioned file of trial court be sent back against receipt. Copy of this order be also sent to the trial court.
Announced in open Court (GURVINDER PAL SINGH)
th
on 26 Day of October, 2015. Addl. Distt. Judge01 (Central) Tis Hazari Courts, Delhi.
(AD) RCA49/2015 Balkishan Sharma Vs. NDMC & Ors. Page 7 of 7