Delhi District Court
Sh. Inder Kapoor vs Sh. Harish Sharma & Another on 14 January, 2016
IN THE COURT OF SH. RAJNISH BHATNAGAR;
ADJ(CENTRAL)11,DELHI
Suit No. : 314/12
Sh. Inder Kapoor
......Plaintiff
vs.
Sh. Harish Sharma & Another
......Defendants
ORDER
1. By this order, I shall dispose of an application U/s 151, 152 and 153 CPC filed on behalf of the plaintiff for rectification of the order dated 24-09-2015.
2. It is averred in the application that the matter was listed on 17-08-2015 and the plaintiff alongwith his counsel appeared in the court and the court was pleased to direct the counsel for the defendant to cross examine the plaintiff's witness but the counsel for the defendant stated that the cross of the plaintiff in regard to the same property is to be conducted in the Court of Sh. Akash Jain, Ld. MM and he sought an adjournment which was granted to the defendant subject to cost of Rs. 3000/- and the matter was fixed for 24-09-2015. It is further averred that the plaintiff on 24-09-2015, was in judicial custody and he appeared in the Court alongwith proxy counsel but the defendant submitted that his counsel was not available therefore the evidence of the plaintiff Suit No. 314/12 Page no. 1/4 was closed without giving an opportunity to the counsel for the defendant to cross examine the witness.
3. It is further averred that inadvertently in the order dated 24-09-2015, it was written that no steps have been taken by the counsel for the plaintiff for his examination and the evidence of the plaintiff was closed and the matter was listed for defendant's evidence for 6-11-2015. It is averred that in the meantime the plaintiff got bail from the Hon'ble High Court and was released on 24-11-2015 and came to know about the topographical error in the order dated 24-09-2015.
4. It is averred that there is no lapse on the part of the plaintiff and it was the counsel for the defendant who had not cross examined the plaintiff despite his appearance from the judicial custody. It is averred that the right of the defendant to cross examine the plaintiff was to be closed. In this background the order dated 24-09-2015, is required to be rectified.
5. The application is also accompanied by an application U/s 5 of the Limitation Act seeking condonation of delay im filing the present application.
6. The averments made in the application U/s 5 of the Limitation Act are similar to those made in the application U/s 151, 152 and 153 of the CPC.
7. No reply has been filed by the counsel for the defendant to both these applications and he made oral submissions. He submitted that there is no merits in the applications and they are liable to be dismissed. He further urged that the plaintiff is Suit No. 314/12 Page no. 2/4 deploying delaying tactics in order to frustrate the defendant.
8. On the other hand, it is urged by the counsel for the plaintiff that only after the release of the plaintiff from JC he came to know about the typographical error and he immediately moved the application. He further urged that the plaintiff has already filed his affidavit of evidence in the Court on 11-02-2013 and on 24-09-2015, the plaintiff was present from JC and he could have been cross examined by the defendant's counsel but the counsel for the defendant was not present and it seems that due to inadvertence the evidence of the plaintiff was closed instead of closing the opportunity of the defendant to cross examine the witness.
9. It is the contention of the counsel for the plaintiff that since the plaintiff was in JC so he could not move the present application on time and only after his release from the JC on 24-11-2015, this application was moved.
10. In these facts and circumstances, the application U/s 5 of the Limitation Act is allowed and the delay in moving the present application U/s 151, 152 and 153 CPC is condoned.
11. I have perused the order dated 11-2-2013, when the affidavit of evidence was filed by the plaintiff. On 24-09-2015, the plaintiff was present from J.C in the Court and the defendant was present in person but the counsel for the defendant was not present. The affidavit of the plaintiff as observed hereinabove was already on record and the plaintiff was also produced from JC so he could have been cross examined on that date but it seems that Suit No. 314/12 Page no. 3/4 due to inadvertence the evidence of the plaintiff was closed though the plaintiff had done whatever he could have done for his evidence. Therefore, the order dated 24-09-2015, needs rectification and is accordingly rectified. The evidence of the plaintiff could not have been closed because the affidavit of the plaintiff was already on record and he was present in the Court for his cross examination. The application is, therefore allowed. Now put up for cross examination of the plaintiff on 16-02-2016.
Announced in the open court (RAJNISH BHATNAGAR)
On 14.01.2016 Additional District Judge
Delhi
Suit No. 314/12 Page no. 4/4