Jitender Kumar Garg vs Smt. Leelawati & Ors.
2009 Latest Caselaw 5037 Del

                 * IN THE HIGH COURT OF DELHI AT NEW DELHI


                                             Date of Reserve: 16th November, 2009
                                                Date of Order: 7th December, 2009

IA No. 3544/2009 in CS(OS) No. 432/2001
%                                                                     07.12.2009

        Jitender Kumar Garg                                  ... Plaintiff
                           Through: Mr. Khushbir Singh, Advocate

                 Versus

        Smt. Leelawati & Ors.                                   ... Defendants
                            Through: Mr. K.K.Jha, Advocate for D-1,2,3 &5

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

ORDER

This application has been made under Order IX Rule 4 CPC by the plaintiff for recalling order dated 2nd March, 2009 whereby the suit of the plaintiff was dismissed in default for non-appearance. It is stated by the plaintiff that plaintiff could not appear before the Court as he was suffering from acute gastro enteritis and severe dehydration and was unable to stand and walk. The plaintiff had engaged a Counsel who inadvertently noted wrong date of hearing and could not appear before the Court. The effort of the plaintiff to contact his Counsel did not succeed.

2. It would be seen that plaintiff had not been appearing in this case quote often and had been adopting the dilatory tactics. A cost of Rs.15,000/- was imposed on the plaintiff by this Court on 25.3.2008 and this cost was also not paid by the plaintiff. He did not appear on 1.9.2008 and on 5.11.2008. Vide order dated 2.12.2008 last opportunity was given to the plaintiff for payment of cost and to file his list of witnesses and affidavits by way of evidence and it was clarified to

him that no further time shall be granted. No witness of the plaintiff appeared nor any affidavit of evidence was filed on record on 2nd February, 2009. Thereafter, when the matter was taken up on 2nd March, 2009, the plaintiff again did not appear and his suit was dismissed in default.

3. The medical certificate filed by plaintiff is for a disease of gastro enteritis. No treatment record has been filed by the plaintiff as to since when he was taking treatment. The medical certificate issued by the doctor specifically mentions at the bottom that the certificate was not for medico-legal purpose. It is obvious that the certificate procured by plaintiff was just to take an excuse of non appearance. Looking into the conduct of the plaintiff, throughout of not prosecuting the suit and just delaying the matter, I find the excuse taken by the plaintiff was false and no ground is there to allow the application. The application is dismissed. The suit shall remain dismissed.

December 07, 2009                              SHIV NARAYAN DHINGRA, J.
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