Radhey Shyam Gupta And Anr. vs Satpal Madan
2008 Latest Caselaw 72 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. Heard learned Counsel for the parties on this appeal, which is filed by the appellants/petitioners.

2. The appellants filed a suit seeking for specific performance of an agreement dated 12th November, 1990 against the respondent in respect of the property bearing No.Plot No. 46, Block-C, Wazirpur Industrial Area, Delhi for a total sale consideration of Rs. 88 lacs. In the said suit, on the basis of the pleadings of the parties, issues were framed and evidence was also recorded. The suit was listed in the category of "Finals". When the matter was so listed for final hearing, on 7th February, 2004, one of the two plaintiffs, namely, Shri Radhey Shyam Gupta expired. Consequently, an application was filed by the legal representatives for substitution of their names in place of the deceased plaintiff - Shri Radhey Shyam Gupta. The said application was allowed by order dated 25th May, 2005 and the said legal representatives were directed to file an amended memo of parties. Unfortunately, the said amended memo of parties was not filed. The suit was, however, dismissed on 5th July, 2006 for non- prosecution as the appellant did not enter appearance when the matter was called out. It is recorded by the learned Single Judge that the said suit reached for final hearing on 3rd July, 2006 and again on 4th July, 2006.

On 4th July, 2006, it appears that the matter was heard by the learned Single Judge. However, when the same was called on 5th July, 2006, the same was dismissed for non- prosecution.

3. Being aggrieved by the said order passed by the learned Single Judge on 5th July, 2006, an application was filed by the appellants praying for setting aside and recalling the aforesaid order dated 5th July, 2006 and for restoration of the suit. The learned Single Judge, however, by order dated 2nd November, 2006 dismissed the said application holding that there is negligence on the part of the appellant in prosecuting the suit and, therefore, there is no sufficient cause shown to restore the petition.

4. The aforesaid order as also the order dated 5th July, 2006 are under challenge in this appeal on which we have heard the learned Counsel for the parties.

5. In the light of the submissions made before us, we find that there is some negligence on the part of the appellant in prosecuting the suit but this is a case where evidence was recorded by the learned Single Judge and, therefore, the learned Single Judge could have disposed of the suit on merits. The respondent/defendant, as it appears, also did not appear before the learned Single Judge on the date when the aforesaid suit was dismissed for non- prosecution. The suit was listed in the category of "Finals" and, therefore, there appears to be lapse of the counsel of both the parties to appear and argue the matter.

6. Therefore, considering the facts and circumstances of the case and particularly in view of the fact that evidence is now available on record, having been adduced by the parties, we recall the orders passed by the learned Single Judge on 5th July, 2006 and 2nd November, 2006, subject to payment of costs of Rs. 25,000/- (Rupees twenty five thousand only), which shall be paid by the appellants to the respondent within three weeks from today. The suit shall now be listed for final hearing before the learned Single Judge, who can hear the suit even on day-to-day basis. The parties shall appear before the learned Single Judge on 4th February, 2008 for obtaining further dates in the suit.