Rajinder Singh vs Devender Singh
2010 Latest Caselaw 717 Del

         *          IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                            Date of Reserve: January 27, 2010
                                                              Date of Order: February 08, 2010
+ CM(M) 595/2008
%                                                                                   08.02.2010
     Rajinder Singh                                                        ...Petitioner
     Through: Mr. B.S. Chaudhary, Advocate

        Versus

        Devender Singh                                                     ...Respondent
        Through: Mr. Amanullah, Advocate


        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?


        JUDGMENT

1. By way of present petition under Article 227 of the Constitution of India the petitioner has

assailed order dated 25th March, 2008 passed by learned Additional District Judge, Delhi whereby

an appeal filed by the petitioner herein against the order dated 4th January 2005 of Civil Judge

was dismissed.

2. The facts relevant for the purpose of deciding the present petition are that when the case

of the petitioner was listed before the learned Civil Judge on 11th April, 2004 none appeared on

behalf of petitioner on the ground that there was a strike of advocates and nobody was permitted

to enter the court premises. The Court also passed no adverse order and adjourned the case to

24th September 2004. On 24th September 2004, when again none appeared, the case was

dismissed. In the application for restoration, it was submitted by the counsel for the petitioner

that inadvertently the petitioner noted next date as 1st October 2004 instead of 24th September

2004 and the petitioner appeared alongwith his counsel on 1 st October 2004 and they found that

the suit was already dismissed on 24th September 2004. Thus there was bonafide reason for non

appearance of the petitioner and his counsel on 24th September 2004. This application was

CM(M) 595/2008 Rajinder Singh v. Devender Singh Page 1 Of 3 considered by the learned Civil Judge and he found that the plea of wrong noting of date taken

by the petitioner was a false plea. The diary of counsel for the petitioner was inspected by the

learned Civil Judge and he found that the diary had been fabricated. The previous date noted in

the diary of the counsel for petitioner as 2nd June 2004 which was not the date fixed in the case.

Since 2nd June 2004 was not the date fixed neither 1 st October 2004 was the date fixed, it

became obvious that these entries were fabricated in the diary in order to make out a case of

wrong noting of date and he, therefore, dismissed the application.

3. In the appeal, no dispute was raised about the fabrication of the diary by the counsel and

the only plea raised was that due to wrong noting of date, the right of the petitioner should not

be allowed to go waste otherwise the petitioner will suffer gross injustice.

4. A person must approach the Court with clean hands. If the Courts starts ignoring false

pleas raised in an application under Order IX Rule 4 or under Order IX Rule 13 CPC and start

allowing applications on the ground of mercy and injustice, the entire sanctity of the judicial

orders shall go. The Courts have to curb tendencies of raising false pleas in the Courts and it

must be made clear to the litigants that they must come to the Court with clean hands. In the

present case, the plea was taken that the proxy counsel noted wrong date, despite that neither

the affidavit of proxy counsel was filed nor any document was filed showing that the proxy

counsel had noted wrong date. Even the name of proxy counsel was not disclosed. If the

advocate or litigant was not able to enter the court premises on 11 th April, 2004, then it was

obligatory on the part of the petitioner and his counsel to inspect the file and note down the

order of 11th April, 2004. In this case in order to take a plea of noting wrong date, the diary of

counsel of the petitioner was fabricated to be produced before the Court to show the noting of

wrong date. The learned trial court and the appellate court, after considering all facts found no

force in the plea raised by petitioner.

5. I find that the learned Civil Judge and the First Appellate Court rightly did not allow the

application under Order IX Rule 4 CPC made on the basis of forged diary of advocate which was

CM(M) 595/2008 Rajinder Singh v. Devender Singh Page 2 Of 3 done for the purpose of seeking restoration of the suit. The present petition is without merits and

is hereby dismissed with no orders as to costs.

February 08, 2010                                           SHIV NARAYAN DHINGRA J.
rd




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