High Court of Delhi was dealing with the petition filed under Section 151 of CPC for recalling of order dated 28.10.2021 and consequently, to restore the suit to its original number as well as to restore the interim order dated 21.12.2020 passed by the Court.
Brief Facts:
The present suit came up for hearing before this Court on 21.12.2020 and on the said date, summons were issued to defendant and an interim order was passed directing the parties to maintain status-quo as to the title and possession of the suit property and the matter was directed to be listed before learned Joint Registrar for completion of pleadings and admission/denial of documents as well as before Court on 12.04.2021.
Plaintiff’s Contention:
The counsel for the petitioner submitted that counsel for the plaintiff had noted en bloc date 10.12.2021 given for all matters listed on 26.08.2021, therefore, she did not appear in the matter due to wrong noting of the date. Learned counsel for the plaintiff further submitted that in fact, on the said date, she was appearing in District Court Gurugram, Haryana in another matter and, therefore, she was held-up there in the said matter till after-noon.
Learned counsel for plaintiff further submitted that the valuable interest of plaintiff in the suit property will suffer irreparable loss, in case the order dated 28.10.2021 is not set-aside and the present suit is not restored to its original number. It was submitted that non-appearance of learned counsel for the plaintiff was due to bonafide mistake and the same was not intentional. Plaintiff came to know about the dismissal of present suit from family members on 11.11.2021 since the family members are living together in the suit property and thereafter, the present application was filed by the plaintiff.
Defendant’s Contention:
Learned Counsel for the respondent submitted that the plaintiff has invoked the inherent jurisdiction of this Court provided under Section 151 CPC for claiming the said relief, however, it is well settled that where specific provision exists in CPC for a relief, the inherent jurisdiction cannot be invoked. Accordingly, the application which has been filed under Section 151 CPC for restoration of present suit is not maintainable and the same is liable to be dismissed.
Further, the plaintiff has taken the plea that the counsel for the plaintiff was under the impression that on 26.08.2021, the matter would be adjourned by en bloc date to 12.10.2021 which is absolutely a false and concocted story put forward by learned counsel for plaintiff to mislead this Court. It was submitted that now a days, even messages regarding the listing of matters are being sent by the Delhi High Court’s concerned branches / listing Branch to the concerned counsels who have filed the suits / petitions etc.
Thus, it cannot be believed by any stretch of imagination that the plaintiff was not aware of the listing of present suit. The matter was shown in the cause list of 26.08.2021 and there were no remarks about any adjournment by en bloc dates. Therefore, the entire story put forward by learned counsel for plaintiff is false and concocted with aim to mislead this Court and to drag on the litigation which is frivolous to cause harassment to the defendant.
HC’s Observations:
After hearing both the sides Court stated that under Section 151 of CPC, the Court has inherent power to consider an application wherein a wrong provision is mentioned. It cannot be an obstacle for granting the relief as made out from the contents of the application. Court stated that it is trite that quoting a wrong statutory provision does not create a bar and stand in the way of considering the application.
Court observed that the plaintiff filed the present suit for partition in which he is claiming 60% share in the suit property and recovery of Rs.86,50,000/- with interest thereon, which is subject matter of trial. However, at this stage, the claim cannot be considered as false and based on concocted story. Court stated that during the present situation, matters are being adjourned en bloc and some matters could not be taken up due to technical glitch on the part of parties appearing through video conferencing.
HC Held:
After evaluating submissions made by both the parties the Court held that “The plaintiff was not represented on 26.08.2021 as well as on 28.10.2021, therefore, the present suit was dismissed in default. However, on 28.10.2021, the learned counsel for plaintiff attended a case before learned ADJ, District Court Gurugram, Haryana and due to which learned counsel for plaintiff could not appear before this Court. The non-appearance on behalf of plaintiff before this Court on the said was not intentional but due to the reasons mentioned above”.
HC allowed the petition.
Bench: Hon'ble Mr. Justice Suresh Kumar Kait
Case Title: Vijay Kumar Nagpal v. Parveen Kumar Nagpal
Case Details: CS (OS) 441/2020
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