S.K. Dewan & Anr. vs Shri K.S. Marwaha
1998 Latest Caselaw 294 Del

ORDER

Lokeshwar Prasad, J.

1. The present Civil Revision, filed by the petitioners, is directed against an order dated the 10th October, 1997, passed by Shri A.K. Sarpal, Civil Judge, Delhi whereby the learned Civil Judge closed petitioners evidence on the application filed by the respondent under Order XXXIX Rule 2 (A) read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC').

2. The facts relevant for the disposal of the present petition lie in a narrow compass. The respondent Shri K.S. Marwaha has filed a suit (S.No. 399/93 entitled Shri K.S. Marwaha Vs. Shri S.K. Dewan & Anr.) for permanent injunction averring that the respondent is the owner and is in possession of agricultural land, measuring 1 bigha in Khasra No. 645, situated at village Malikpur Kohi alias Rangpuri, Tehsil Mehrauli, New Delhi. Alongwith the suit, the respondent/plaintiff has also filed an application under Order XXXIX Rule 1 & 2 read with Section 151 CPC. An ex-parte ad interim stay was granted in favour of the respondent by Shri R.S. Mahla, the then Sub-Judge, Delhi. The petitioners contested the claim of the respondent by filing written statement. In the written statement, filed on behalf of the petitioners, it was stated that they were the owners in possession of the suit land. The petitioners also prayed for appointment of a Local Commissioner to visit the site. A Local Commissioner was appointed to visit the suit land. The Local Commissioner, Ms. Kanta Rana, Advocate submitted a Report dated the 29th April, 1994. The respondent filed objections to the Report of the Local Commissioner and also filed an application under Order XXXIX Rule 2 (A) CPC for initiating proceedings of contempt against the petitioners. The petitioners filed the reply to the above mentioned application. The learned trial Judge, on the above said application of the respondent filed under Order XXXIX Rule 2 (A) CPC, has framed the following issue on 31st January, 1995:-

(1) Whether the alleged contemner has committed any contempt by violating the Court order dated 16.8.1993? OPP/Applicant evidence.

(2) Relief.

3. The evidence of the respondent/plaintiff was closed on 14th March, 1997. After the closure of the respondent/plaintiff's evidence, the matter was adjourned to 19th May, 1997 for petitioners evidence. On 19th May, 1997, no witness on behalf of the petitioners was present and the matter was adjourned to 28th August, 1997. On 28th August, 1997 also no witness on behalf of the petitioners was present and as such the matter was adjourned to 10th October, 1997. It was made specifically clear that the petitioner/defendants were being given last opportunity. On 10th October, 1997, the counsel for the petitioners/defendants was not available. The learned Civil Judge vide order dated 10th October, 1997 closed the evidence of the petitioners. The operative portion of the above said order reads as under:-

"It is not the duty of the court to wait for counsel. U/o 17 R.1 CPC absence of counsel or remaining busy in another court is not a ground of adjournment. Counsels should realise that they are officers of court and should extent their cooperation to court by appearing as and when case is called for hearing. Defendant has not appeared on last two dates nor brought any witness. Hence evidence of the defendant is closed by order as today is the last opportunity for defendant."

4. Feeling aggrieved, the petitioners have filed the present revision petition which came up for hearing before the learned Predecessor of this Court on 25th November, 1997 on which date the following order was passed by the learned Predecessor of this Court while issuing notice of the petition to the respondent:-

"CR. No. 1218/97

The contention of the learned counsel for the petitioner is that the counsel for the petitioner in the Trial Court was suffering from high fever and thus could not attend the Court though the witnesses were present. The impugned order does not reveal that this submission was ever made before the learned Trial Judge or an application to this effect was submitted. It is the petitioner's case that since the Court did not accept the prayer for adjournment the counsel for the petitioner though suffering from high fever came to the Court at 2.15 p.m. while the evidence was closed without giving any further opportunity. Learned counsel may file the affidavit of the learned Advocate for the petitioner who appeared in the Trial Court. Let this be done within a week.

Issue notice to show cause for 16.12.1997."

5. In compliance with the above orders of this Court, the petitioners have filed an affidavit of Shri Davinder Verma, Advocate wherein it has been stated by Shri Davinder Verma that he was having viral fever on 10th October, 1997 as a result of which he was not attending the Court work. It is further stated by Shri Verma in his above said affidavit that in spite of the fact that he was having fever on 10th October, 1997, he reached the Court of Shri A.K. Sarpal, Civil Judge, Delhi as his wife received frantic calls from the client, namely, Mrs. Achla Dewan (petitioner No. 2).

6. The respondent, to whom a show cause notice has been given, has filed a reply to the show cause. In the reply to the show cause, filed on behalf of the respondent, it is stated that the present revision petition, filed by the petitioners is not maintainable. It is stated in the reply that the petitioners have not come to the Court with clean hands and that they have not only suppressed true facts but they have also made false statements. It is stated that on 10th October, 1997 when the case was called for hearing for the first time, some Advocate appeared for the petitioners as a proxy counsel and stated that the counsel for the petitioners had not come by that time and that the case be taken up after some time. It is further stated that after some time when the case was again called out, the said proxy counsel again made a similar request. The case was again called for hearing at 12.40 p.m. and at that time petitioners were present alongwith the proxy counsel but the counsel for the petitioners was not there and at the request of the petitioners and that of the proxy counsel, the case was adjourned to 2.00 p.m. Again the counsel for the petitioners was not present and a request was made by the proxy counsel for adjournment on the ground that the counsel for the petitioners was not present as he was busy in another court. The above request of the proxy counsel for the petitioners was rejected and the evidence of the petitioners was closed. In the reply filed on behalf of the respondent, it is specifically denied that the proxy counsel/junior counsel for the petitioners informed the learned Civil Judge that the counsel for the petitioners, Mr. Davinder Verma was having fever. In the reply it is also stated that at no point of time it was brought to the notice of the learned Civil Judge that Shri Davinder Verma, counsel for the petitioners was suffering from fever. It is also stated that no request was made by any one for adjournment of the case on the ground of the illness of the Advocate. It is stated that in view of the above facts, the present petition, filed by the petitioners is liable to be dismissed with costs.

7. I have heard the learned counsel for the parties at length and have also carefully gone through the documents/material on record. In my opinion, the contention of the learned counsel for the respondent that the present civil revision petition, filed by the petitioners, is not maintainable is without any substance and has to be rejected summarily.

8. It is not in dispute that on 19th May, 1997 and on 28th August, 1977, no witness on behalf of the petitioners was present in the Court of learned Civil Judge. Vide order dated 28th August, 1997, the learned Civil Judge, while adjourning the matter for 10th October, 1977, made it clear that the petitioners/defendants were being given last opportunity. On 10th October, 1997, the petitioners were present with proxy counsel. The first order sheet of the above said date recorded by the learned Civil Judge reads as under:-

"Present : Plaintiff in person.

Defendants with proxy counsel.

It is now 12.40 p.m. and counsel for defendant is not available since morning. It is not the duty of the court to wait for counsel for defendant. However, at request put up at 2.00 p.m."

Thereafter it appears that the case was taken up at 2.00 p.m. The proceedings recorded by the learned Civil Judge at 2.00 p.m. read as under:-

"2 p.m. Pr: Plaintiff in person.

Defendant with proxy counsel.

Counsel for defendant has not come so far.

It is not the duty of the court to wait for counsel. U/o 17 R.1 CPC absence of counsel or remaining busy in another court is not a ground of adjournment. Counsels should realise that they are officers of court and should extend their cooperation to court by appearing as and when case is called for hearing. Defendant has not appeared on last two dates nor brought any witness. Hence evidence of the defendant is closed by order as today is the last opportunity for defendant. In respect of non-appearance of counsel, I am also relying upon observations of High Court in Cr.No. 327/97 decided on 8.4.1997. Case is adjourned for arguments on contempt application for 27.11.97."

9. On the same date at 2.15 p.m., the learned Civil Judge passed the following orders:-

"At this stage 2.15 p.m. Counsel for defendant appeared and he is informed about order passed and next date.

C.J.

10.10.97

Defendants have also stated that witnesses Davinder Jain and Kehar Singh had appeared."

10. From the above said proceedings, recorded by the learned Civil Judge on 10th October, 1997, the correctness of which is not in dispute, it is apparent that the petitioners were present and their witnesses, Shri Davinder Jain and Shri Kehar Singh had also appeared before the learned Civil Judge on the above said date. The evidence on behalf of the petitioners could not be recorded on the above said date due to the non-availability of their counsel. The case of the petitioners is that their advocate could not appear on the above said date on account of illness whereas it has been contended by the learned counsel for the respondent, during the course of arguments, that the above ground taken by the petitioners is not factually correct and the adjournment was requested by the proxy counsel for the petitioners who appeared before the learned Civil Judge on 10th October, 1997, on the ground that the counsel for the petitioners was busy in some other court. It is worthy mentioning that no material whatsoever has been brought on record by the respondent which may indicate that the counsel for the petitioners, namely, Shri Davinder Verma, on 10th October, 1997, was attending the court work and had appeared in any other case.

11. The learned Predecessor of this Court on 25th November, 1997, when the matter came up for hearing before him, gave specific directions that the learned counsel for the petitioner may file affidavit of the learned advocate of the petitioners who had appeared for them in the Trial Court in support of the contention of the petitioners that the counsel for the petitioners was suffering from high fever and came to the Court at 2.15. p.m. Shri Davinder Verma, the counsel for the petitioners in the Trial Court, has filed his own affidavit stating therein that he was having viral fever on 10th October, 1977 as a result of which he was not attending the court work and that in spite of the fact that he was having fever on 10th October, 1997, he reached the Court of Civil Judge, Delhi as his wife received frantic calls from petitioner No.2. He has further stated in the above said affidavit that he reached the Court at 2.15. p.m. and at that time his client, the petitioners as well as their witnesses were present. The above facts as stated by Shri Verma in his affidavit dated 12.12.1997, filed in compliance with the orders of this Court, have gone on record unrebutted and unchallenged. The fact that on 10th October, 1997 the petitioners alongwith their witnesses were present in the court finds support from the judicial record wherein the presence of the petitioners alongwith the witnesses Shri Davinder Jain and Shri Kehar Singh has been recorded.

12. Moreover, the underlying principles to be kept in mind is that the ultimate object of the procedural laws is to ensure that 'substantial justice' is done to the parties and therefore it should be the endeavour of the Courts to see that the disputes between the parties are resolved as far as possible on merits in just, fair and reasonable manner. Victory or defeat on technical grounds should ordinarily be avoided and discouraged. As per settled law, culled out from various decisions, a party cannot be penalised for any inaction on the part of his counsel. In other words, a litigant should not be made to suffer on account of inaction or a default on the part of his counsel, if the same is not deliberate or wilful and is bona fide. In the present case the evidence on behalf of the petitioners on 10th October, 1997 could not be recorded as the counsel for the petitioners on accounts of viral fever was not attending the Court. The fact that Shri Davinder Verma, the counsel for the petitioners on 10th October, 1997 was suffering from viral fever is not disputed even by the respondent.

13. From the narration of the above facts, it is apparent that the petitioners with their witnesses were present on 10th October, 1997 but the witnesses could not be examined due to the non-availability of the counsel for the petitioners who on the above said date was not attending the court as he was suffering from viral fever.

14. In view of the above facts, the present petition, filed by the petitioners, deserves to be allowed. However, for inconvenience caused to the respondent, the respondent can be suitably compensated by way of costs.

For the foregoing reasons, the petition is allowed subject to payment of costs. Costs quantified at Rs.1,000/- awarded to the respondent. The impugned order is set aside and it is directed that subject to payment of costs as ordered above, the learned Civil Judge shall give one more oppor-tunity to the petitioners for adducing evidence in support of their case. Parties are directed to appear before the learned Civil Judge on 20.4.1998 who shall subject to his convenience and also subject to the convenience of the learned counsel for the parties shall fix an early date for evidence on behalf of the petitioners.

16. A copy of this order be forwarded to the concerned court for compliance.

17. Petition stands disposed of in above terms.