Delhi District Court
Sudesh vs . Vinod on 10 January, 2014
IN THE COURT OF SH. PRANJAL ANEJA, LD. CIVIL JUDGE14/ CENTRAL
TIS HAZARI COURTS, DELHI
M No. 01/014 10.01.2014
SUDESH Vs. VINOD
ORDER
1. This order of mine shall decide the application u/o IX rule 4 CPC dt. 29.10.2013 filed on behalf of the plaintiffs.
2. It is stated in the application that the main suit was dismissed for non- prosecution on 22.05.2013. That the suit was being looked after by Sh. Chander Gupt Maurya and Sh. A. K. Dubey, advocates. That on 22.05.2013, the plaintiff along with clerk of the counsel for the plaintiff appeared and the court granted time to the plaintiff to pay the cost and pursue the present suit and the matter was posted for 02:00pm. That thereafter, the plaintiffs contacted his aforesaid counsels and informed them about the directions so passed upon which the said counsels asked the plaintiffs to pay Rs. 1,000/- to enable them to pay the same to the opposite party and further directed to contact them over telephone and stated that they would appear before the court at 02:00pm and would pay the cost and the presence of the plaintiffs is not required, and accordingly the plaintiffs after making payment of cost of Rs. 1,000/- left for his house. That in the evening when the plaintiffs contacted the said counsels they informed that the cost has been paid and the case is fixed for further proceedings and arguments on 08.11.2013. That M. No. 01/14 Page No. 1 of 4 Sudesh Vs. Vinod On 10th January, 2014 to the utter shock and surprise, the plaintiffs received copy of notice of the application u/s 35-A CPC on 26.10.2013 and came to know about the dismissal of the present suit. Immediately, the plaintiffs contacted the said counsels and apprised them about the facts, who instead of giving proper reply to the plaintiffs, returned back the brief of the present case. Thereafter, the plaintiffs engaged the present counsel who inspected the record and moved the present application. That the non- appearance as well as non payment of the cost by the plaintiffs to the defendants on 22.05.2013 at 02:00pm was neither intentional nor deliberate and had no intention at any point of time to disobey any direction of the court. That therefore, the order dt. 22.05.2013 be set aside and the suit be restored back.
3. No written reply was filed on behalf of defendants/ respondents.
4. I have heard the arguments addressed by the ld. Counsels for both the sides and perused the record.
5. Firstly, it is to be noted that the present application has been filed under Order IX rule 4 CPC which is not applicable as the dismissal of the suit is not covered under Rule 2 or 3 of Order IX CPC, however, mere mentioning of wrong provision of law does not dis-entitle the applicant to the substantive relief. On merits it is seen that the main suit no. 129/12 was dismissed in default and for non- prosecution vide order sheet dt. 22.05.2013. Previous order sheets show that on 04.04.2013 last opportunity was granted to the plaintiffs on the date when plaintiff no. 3 appeared with the clerk of the counsel. On the next date i.e. 30.04.2013 also only plaintiff was present along with clerk of the counsel and he sought adjournment stating that counsel is not available. Despite last opportunity having been granted to the M. No. 01/14 Page No. 2 of 4 Sudesh Vs. Vinod On 10th January, 2014 plaintiffs, one more opportunity was granted subject to a cost of Rs. 1,000/- to be paid to the defendants and the matter was adjourned for reply and arguments on the pending application for 22.05.2013. The order sheet for the next date i.e. 22.05.2013 is necessary to be reproduced as under:-
" Suit No. 129/1222.05.2013 Present: Plaintiff in person along with clerk of the counsel.
Sh. Manish Kapoor ld. Counsel for the defendant.
The clerk states that counsel is not available. The ld. Counsel for the defendant states that the previous cost of Rs. 1000/- has not been paid yet. The plaintiff has been directed to pay the said cost to the opposite party but he is reluctant to pay the same. Further time is granted to the plaintiff to pay the cost and pursue the present suit and therefore put up the matter post lunch at 2.00 PM.
(PRANJAL ANEJA) CIVIL JUDGE-14 (Central) THC/DELHI/22.05.2013"
6. The above order sheet shows that the plaintiff was reluctant in paying the previous cost of Rs. 1,000/- despite direction of this court and upon which, time was granted to the plaintiffs to pay the cost and pursue the present suit at 02:00pm as the counsel was not appearing for the last two dates. Thereafter at 02:00pm none appeared and thus the suit got to be dismissed in default and for non- prosecution.
7. In light of the above observation regarding reluctance seen on the part of plaintiff to pay cost, the contention of the applicant/ plaintiff, that there was at no point of time any intention to violate or disobey any of the directions so M. No. 01/14 Page No. 3 of 4 Sudesh Vs. Vinod On 10th January, 2014 passed by this court, falls to the ground as it has been clearly recorded in the said order sheet that the plaintiff is reluctant to pay the previous cost. There was no application for recall of the order imposing the cost or any cost waiver application pending for which it could be understood that the plaintiff was a bit hesitant or reluctant to pay the cost. What transpires from the contention in the present application is that the plaintiff instead of paying the costs upon the directions of the court to the defendants in the court itself, allegedly paid the same to his counsels. It is here important to note that the plaintiffs have themselves raised allegations against the same counsels to whom they have allegedly paid the said cost of Rs. 1,000/-. When the present application was filed it was directed to the plaintiff/ applicant to produce NOC of the previous counsels but even no NOC was produced, however, the plaintiff was heard upon the application in the interest of justice. No reliance can be placed upon a litigant who is reluctant in obeying the directions/ order of the court and is also making allegations against his previous counsels whose NOC have not been filed by him. Thus, the plaintiffs have miserably failed to show sufficient cause for non- appearance and non- prosecution of the main suit and the conduct of the plaintiff as noted above calls for the present application to be dismissed as merit less with cost of Rs. 3,000/- out of which Rs. 1,500/- is to be paid to the defendants and Rs. 1,500/- to be deposited with DLSA.
Application dismissed accordingly.
Announced in open Court (PRANJAL ANEJA)
on 10.01.2014 CIVIL JUDGE-14, CENTRAL
THC/DELHI/10.01.2014
M. No. 01/14 Page No. 4 of 4
Sudesh Vs. Vinod On 10th January, 2014