Delhi High Court
Chet Ram Gupta vs Motian Devi Lamba on 1 August, 1994
Equivalent citations: 1994IIIAD(DELHI)1401, 58(1995)DLT366, (1995)110PLR78
JUDGMENT Usha Mehra, J.
1. Sh. Chet Ram Gupta, plaintiff herein, filed a suit for specific performance of the agreement to sell against Smt. Motian Devi Lamba and Ors. The suit was listed on 22nd March, 1993 according to the plaintiff, before Dalveer Bhandari, J. for arguments on the applications and for framing of issues. On 22nd March, 1993 applications of the plaintiff bearing I A. No. 787/89 (Correct No. 7879/89) and that of the defendant bearing IA. No. 6021/90 were heard in part, and thereafter the case was adjourned to 24th March, 1993 for remaining arguments. On 24th March, 1993 the case was renotified for3rd May, 1993. On 3rd May, 1993 the Hon'ble Judge was on leave and the case was adjourned to 5th May, 1993 for arguments on IA. Nos. 787/89 (Correct No. 7879/89) and 6021/90. Arguments were not heard hence the case was adjourned for consideration of those applications on 5th July, 1993. On 5th July, 1993, at the request of Counsel for the defendants, case was adjourned to 20th September, 1993. On that date Mohd. Shamim, J. observed that since it was part heard matter before Dalveer Bhandari, J., therefore, it should be placed before the same Bench. Accordingly, the matter was listed before Dalveer Bhandari, J. for 24th September, 1993. However, Dalveer Bhandari, J. discharged the matter from his Board and ordered it to be listed before Regular Bench for 28th September, 1993, neither the plaintiff nor his Counsel put in appearance, whereas Counsel for the defendants were present. After calling the case twice the suit was dismissed in default.
2. It is against this order of dismissal dated 28th September, 1993 that the present application has been filed inter alia on the ground that Dalveer Bhandari, J. was sitting in Division Bench Along with Hon'ble the Chief Justice, therefore, the matter was not taken up on 24th September, 1993. The case was not taken up by Dalveer Bhandari, J. till about 4.10 p.m. nor the date was given in the presence of the Counsel. Hence, the Counsel for the applicant could not note the next date fixed by Dalveer Bhandari, J. and hence could not put in appearance on 28th September, 1993 before Mohd. Shamim, J. It is further alleged that the Court Master told him to enquiry about the next date later on. 25th and 26th September, 1993 happened to be holiday on account of Saturday and Sunday respectively. On Monday the Counsel could not make the enquiry personally, however, instructed his Clerk to find out the date from the Registry. The Counsel for the plaintiff on account of some personal work had to leave the Court on 28th September, 1993 at 11.30 a.m. Therefore, when Mohd. Shamim, J. called this case, none was present on behalf of the plaintiff. The plaintiff was also not aware of the next date hence he also could not come to Court on 28th September, 1993. That the non appearance of the Counsel for the plaintiff as well as of the plaintiff was neither intentional nor deliberate, but due to circumstances beyond their control. It was all on account of the confusion created by transfer of case from one Court to other and the date of 28th September, 1993 having not been fixed in the presence of the Counsel for the plaintiff. As soon as the Counsel came to know about the dismissal of the suit, he immediately approached the Hon'ble Judge in Chamber and apprised him the exact position. The date of 28th September, 1993, as per record was fixed in the presence of Mr. Mohinder Rana. In fact he was not the Counsel for the plaintiff. Mr. Mohinder Rana has also filed his affidavit stating there that the dated of 28th September, 1993 was not fixed in his presence. Cause list of 28th September, 1993 could not be checked by the Counsel for the plaintiff because some pages of the cause list were missing. Plaintiff was not required to attend the Court. It was for the Counsel to find out date as to when the case was to be listed before the Regular Bench, therefore, in these circumstances he could not appear. Even otherwise the part heard matter before Dalveer Bhandari, J. were the applications and those applications had been listed for arguments on 28th September, 1993, therefore, the suit could not have been dismissed. It was only the applications which at best could have been dismissed.
3. This application has been contested by the defendants on the grounds that the date of 28th September, 1993 was fixed by Dalveer Bhandari, J. in the presence of the Counsel for the parties. Plaintiff cannot be allowed to take advantage of his negligence in not appearing on 28th September, 1993. The alleged enquiry was made by the Counsel for plaintiff from the Reader of the Court about the next date has been denied. If the plaintiff and his Counsel were not vigilant in pursuing their case, they cannot hold someone else liable for the same, Moreover, the Reader never told the Counsel, as stated in this application that the date would be informed later on. All averments made in this application have also been denied. It is denied that the case was listed only for disposal of the applications. It has also been denied that Mr. Bhargava had any personal work and left the Court at 11.30 a.m. on 28th September, 1993.
4. I have heard learned Counsel for the parties and perused the proceedings as well as averments made. I have given my thoughtful consideration to the arguments advanced at the Bar.
5. Perusal of the record shows that on 1st March, 1993, Dalveer Bhandari, J. ordered the case to be listed for arguments on the applications as well as for framing of issues on 22nd March, 1993. On 22nd March, 1993, Dalveer Bhandari, J. heard the arguments on the applications in part and adjourned the case for remaining arguments on 24th March, 1993. On that date another application bearing IA. No. 3285/93 was listed. Notice of the same was issued. Mr. Swatantra Kumar, Counsel for the defendants accepted the notice. This application was also ordered to be listed on 24th March, 1993 on which date applications Nos. 789/89, 6021/89 in Suit No. 2818/93 had also been adjourned. The case was thereafter adjourned to 3rd May, 1993 and then to 5th May, 1993. On 5th May, 1993 I.A.S. 787/89 and 6021/90 only were listed. Proceedings of the case show that arguments could not be heard on these applications as Mr. L.R. Gupta, Sr. Advocate, appearing for the plaintiff was not available. Therefore, the case was adjourned to 5th July, 1993. In the meantime, the Roster changed. Mohd. Shamim, J. took over the Bench. On 5th July, 1993, adjournment was sought, the same was allowed and the case was adjourned to 20th September, 1993. On 20th September, 1993 Mohd. Shamim, J. observed that since it was a part heard matter, therefore, it be posted before Dalveer Bhandari, J. The matter was accordingly placed before Dalveer Bhandari, J. The record as discussed above would show that on 22nd March, 1993 Dalveer Bhandari, J. had heard in part applications Nos. 787/89 (Correct No. 7879/89) and 6021/89. Hence these applications being part heard were ordered to be listed before Dalveer Bhandari, J. So far as the suit was concerned, it was adjourned as per the proceedings dated 1st March, 1993 for framing of the issues. But subsequent thereto it was adjourned from time to time for arguments on the applications. Hence as far as framing of issues were concerned, it could not be treated as part heard. Only applications on which arguments were heard in part could be treated as part heard. When Mohd. Shamim, J. observed that the matter was part heard and be listed before Dalveer Bhandari, J. it was in fact the applications which were to be listed before Dalveer Bhandari, J. and not the suit. Hence, when the matter was discharged by Dalveer Bhandari, J., it was these two applications. On 28th September, 1993, only these applications were to be listed for arguments. To my mind, when the Counsel for the plaintiff did not appear, the Court could have dismissed the applications but not the suit. The contentions of Mr. Lekhi as well as of Mr. Mittal that the suit was also listed on that date does not find support from the perusal of the Court record. On 24th March, 1993, applications in Suit were only adjourned for arguments to 3rd May, 1993 and subsequently to 5th May, 1993, though on 22nd March, 1993 the applications were heard in part and the suit was also ordered to be listed for framing of issues. But in fact only applications in suit were listed on 3rd May, 1993 and 5th May, 1993. Hence, the suit could not have been dismissed.
6. The contention of Mr. Lekhi, that applications are corollary of the suit and when the applications were dismissed the suit automatically stood dismissed to my mind has no merit. We do dismiss applications in default and at times dismiss these on merits, but that does not mean that suit also stands disposed while disposing the applications. The dismissal of the applications will not tantamount dismissal of the suit. So far as the question of showing sufficient cause of action is concerned, the Counsel for the plaintiff has indicated the circumstances in which he could not appear on 28th September, 1993. His application is supported by the affidavit of the plaintiff as well as of his Counsel, Mr. Sanjay Abbot. Mr. Mohinder Rana has also filed his affidavit stating therein that he did not appear in the Court in this case on 24th September, 1993. Even otherwise the circumstances of this case do not indicate any negligence or slackness on the part of the plaintiff. This application for setting aside the impugned order was filed on 30th September, 1993. It cannot be said that the plaintiff was negligent in pursuing his suit and the application. To my mind, the contention of Counsel for the defendants that the negligence of the Counsel is not a sufficient ground for setting aside/recalling the order has no force. In fact this appears to be bonafide mistake on the part of the Counsel when he did not appear. But the circumstances explained by him do not amount to deliberate action or negligence on the part of the Counsel. Hence, for this act of the Counsel, the plaintiff cannot be made to suffer. The plaintiff and his Counsel have shown sufficient cause to recall the order.
7. For the reasons stated above, I think it is a fit case where the order of 28th September, 1993 should be recalled and the suit and the applications be restored to its original number, subject to payment of Rs. 3,000/- as costs to be shared equally by the Counsel for the defendants. Ordered accordingly.