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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. No. 15329/2012 (by the defendant u/S 5 & 14 of the
Limitation Act) & OA No.90/2012 in CS(OS) 2382/2009
Date of Decision: 5.12.2012
IN THE MATTER OF
NEETA AJAY KUMAR & ORS. ..... Plaintiffs
Through Mr. Amar Khera, Advocate
versus
VEENA NARANG & ANR. ..... Defendants
Through Mr. Lalit Gupta and Mr. Ashish
Kumar, Advocates
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
I.A. No. 15329/2012 (by the defendant u/S 5 & 14 of the Limitation Act) & OA No.90/2012 in CS(OS) 2382/2009
1. The present application has been filed by the defendant (appellant herein) for condonation of delay in filing the accompanying Chamber Appeal. Although notice was issued only on the application, counsel for the non-applicant/plaintiff has filed a composite reply to the Chamber Appeal and the interim application and both the parties have addressed arguments not only on the application, but also on the appeal.
OA No.90/2012 Page 1 of 10
2. In view of the above, both, the present application and the Chamber Appeal are taken up for final disposal today itself.
3. The relevant sequence of events that has led to the filing of the present Chamber Appeal, accompanied by an application for condonation of delay, is that vide order dated 25th April, 2011, the Joint Registrar was pleased to discharge PW-1, Smt. Neeta Ajay Kumar (plaintiff No.1 herein) after closing the opportunity of cross- examining the said witness on account of delay on the part of the learned counsel for the defendant in appearing before him.
4. Aggrieved by the aforesaid order, on 30th June, 2011 the defendant No.1 had filed an application under Order 18 Rule 17 of the CPC, registered as I.A.No.10271/2011. The application was listed before the Joint Registrar on 4th July, 2011 and notice was issued to the plaintiff, returnable on 5th September, 2011. Thereafter, the application was listed before the Joint Registrar from time to time and finally, on 4th May, 2012, the same was directed to be placed before the Court.
5. On 17th July, 2012, when the application was placed before the Court, after addressing the arguments at some length, counsel for the defendant had sought leave to withdraw the aforesaid application while reserving the right of the applicant to file an appropriate OA No.90/2012 Page 2 of 10 application to seek review/file an appeal in respect of the order dated 25th April, 2011, passed by the Joint Registrar. Leave, as prayed for, was granted to the defendant and the application was dismissed as withdrawn.
6. Thereafter, on 18th August, 2012, the defendant filed the present Chamber Appeal, along with I.A. No.15329/2012, praying inter alia for condonation of 438 days delay in filing the appeal.
7. A perusal of the order sheet would reveal that on 24th November, 2010, PW-1 had entered the witness box and when her examination-in-chief was concluded, she was partly cross-examined, whereafter, the matter was adjourned to 17th February, 2011 for further cross-examination of the said witness.
8. On 17th February, 2011, PW-1 was again partly cross-examined and her further cross-examination was deferred at a request made by the counsel for the plaintiff who had stated that he would not be available in the post lunch session. The said order took notice of the fact that prior to starting the cross-examination of PW-1, the chief- examination of PW-2 was also recorded to save time and then his cross-examination was deferred.
OA No.90/2012 Page 3 of 10
9. On the next date of hearing, i.e., on 25th April, 2011, the Joint Registrar had recorded that initially, the matter was called at 1:05 pm and at that time, counsel for the defendant had appeared and sought a pass over, which was opposed by the other side. However, the request for pass over was declined and the said witness was tendered for cross-examination by Mr. Pandey, proxy counsel for the defendants. As he did not ask any questions, the said witness was discharged. The said order had also recorded the fact that by the time PW-2 was administered oath, Mr. Lalit Gupta, Advocate had arrived and at that point, the time recorded was about 01.12 p.m. Learned counsel for the appellant/defendant then cross-examined PW-2 and requested that PW-1 be recalled for further cross-examination but his request was turned down and he was advised to file an application. With the aforesaid orders, further cross-examination of PW-2 was adjourned to 5th September, 2011.
10. It was in this duration that the defendant had filed an application under Order XVIII Rule 17 CPC for recall of the aforesaid order. As the maintainability of the same was questioned by the counsel for the plaintiff, vide order dated 10.02.2012, the Joint Registrar directed that the said application be listed before the Court. As noted above, ultimately, the aforesaid application was permitted to be withdrawn by OA No.90/2012 Page 4 of 10 the counsel for the appellant/defendant on 17th July, 2012 while giving him an opportunity to file an appropriate appeal/review application in accordance with law.
11. Learned counsel for the appellant/defendant states that the delay on his part in reaching the court of the Joint Registrar on 25 th April, 2011 was bonafide as he was held up in Court in some other matter. He submits that in any case, the delay of seven minutes occurred in reaching the chamber of the Joint Registrar on account of the fact that he was in the main block of the Court Complex and it took him that much time to reach the court of the Joint Registrar. He also points out that if the intention of the appellants/defendants was to delay the proceedings then he would not have proceeded to cross- examine the other witness of the plaintiff, i.e., PW-2. However, on the very same date, the said witness was duly cross-examined by him and in that duration, PW-1 had remained present but despite the same, learned counsels request for permitting her further cross-examination was unreasonably opposed by the other side and therefore, the delay, if any, in concluding the evidence of PW-1 is attributable to the plaintiff.
OA No.90/2012 Page 5 of 10
12. Learned counsel for the plaintiff opposes the Chamber Appeal and the application for condonation of delay on the ground that the appellant/defendant has deliberately delayed the cross-examination of PW-1 and in any case, the delay of 438 days in filing the Chamber Appeal ought not to be condoned for the reason that the appeal ought to have been filed by the defendant within 15 days from the date of passing of the impugned order dated 25th April, 2011, i.e., on or before 10th May, 2011, whereas the same actually came to be filed as late as on 18th August, 2012. It is further stated that even on an earlier occasion, the application of the appellant/defendant filed under Order XVIII Rule 17 CPC, i.e., I.A. No.10271/2011 was belated, having been filed after a delay of 51 days, if reckoned from 10th May, 2011.
13. As regards the submission of counsel for the appellant/defendant that when the matter was called for recording the cross-examination of PW-1, his absence was bonafide, it is stated that the explanation offered is untenable for the reason that the defendants were all along aware of the date fixed before the learned Joint Registrar and the purpose for which it was fixed and yet PW-1 was not cross-examined on the said date. It is therefore, submitted that there is no justification for interfering with the impugned order passed by the Joint Registrar where under the right of the defendants for further OA No.90/2012 Page 6 of 10 cross-examination of PW-1 was closed.
14. The Court has heard the counsels for the parties and considered their respective submissions. Taking the application for condonation of delay first, in view of the fact that the defendants had initially filed an application under Order XVIII Rule 17 CPC for recalling the interim order dated 25th April, 2011, which was ultimately withdrawn by them on 17th July, 2012, it cannot be said that there was a gross and inexplicable delay on their part in assailing the order dated 25th April, 2011. It is a different matter that ultimately the said application was withdrawn by the defendants upon realizing that the proper remedy against the impugned order dated 25th April, 2011 was by filing a Chamber Appeal.
15. An Appeal ought to have been preferred by the appellant/defendant against the impugned order within a period of 15 days i.e., on or before 10th May, 2011. However, the aforesaid application for assailing the said order came to be filed by the defendants on 30th June, 2011, during the period of the summer vacations and prior to the first working day, upon the Court re- opening.
16. The aforesaid delay can also not be treated as so inordinate as to non-suit the defendants. In the given circumstances, the Court is OA No.90/2012 Page 7 of 10 satisfied that the delay in filing the accompanying appeal ought to be condoned and the appeal ought to be heard on merits. Accordingly, the delay in filing the accompanying Chamber Appeal is condoned and the application is disposed of.
17. Coming next to the Chamber Appeal, the Court finds that there is merit in the submission made by learned counsel for the defendant that it was not on his account that the trial in the case got delayed. As noted above, PW-1 was partly cross-examined by him on 24th November, 2010 and on 17th February, 2011 and on the latter date, as learned counsel for the plaintiff was unavailable till 3.30 pm and thereafter, the witness was unable to wait on account of her personal difficulty, that her cross-examination was deferred to 25th April, 2011.
18. A perusal of the proceedings recorded by the Joint Registrar on 25th April, 2011 would reveal that Mr. Lalit Gupta, Advocate, had reached the court of the Joint Registrar at 1.12 pm, i.e., within seven minutes of the matter being called for the purpose of recording the cross-examination of PW-1 and three minutes short of the lunch recess. In such circumstances, by no stretch of imagination can the delay on the part of the learned counsel for the defendants in reaching the Court of the Joint Registrar be termed as so inordinate as to close the right of the defendants to cross-examine the said witness. OA No.90/2012 Page 8 of 10
19. The opposition of the counsel for the plaintiff to the request made by the counsel for the defendants for an opportunity to conclude the cross-examination of PW-1, appears to be unreasonable, more so when the counsel for the plaintiff was himself unavailable on the said date, and only his proxy counsel was present.
20. In any case, it is not as if the case was adjourned on 25 th April, 2011 without recording the evidence of any witness produced by the plaintiff. Rather, the order sheet of 25th April, 2011 reflects that on the said date PW-2 was partly cross-examined by the counsel for the defendants. In view of the above, the Court is of the opinion that the counsel for the defendant ought not to be blamed for such minimal and negligible delay on account of circumstances that were beyond his control.
21. As a result of the aforesaid discussion, it is deemed appropriate to allow the present appeal and permit the defendants to conclude the cross-examination of PW-1.
22. As counsel for the parties state that the next date of hearing fixed before the Joint Registrar for the further cross-examination of PW-2 is 31st January, 2013 at 2:15 pm, it is directed that on the said date, in the first instance, the cross-examination of PW-1 shall be concluded before proceeding to cross-examine PW-2. It is further OA No.90/2012 Page 9 of 10 clarified that if the counsel for the defendants remains unavailable for cross-examining PW-1, then no further opportunity shall be granted in this regard. Counsel for the plaintiff shall ensure the presence of PW-1 on the aforesaid date.
23. The present appeal is disposed of.
HIMA KOHLI, J DECEMBER 05, 2012 rs OA No.90/2012 Page 10 of 10