Mahavir Parshad Lamboria & Anr. vs Joginder Kaur & Ors.
2010 Latest Caselaw 1380 Del

                   * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                      Date of Reserve: 8th March, 2010
                                                       Date of Order: 12th March, 2010

CM(M) No. 308/2010
%                                                                          12.03.2010

        Mahavir Parshad Lamboria & Anr.                        ... Petitioners
                          Through: Mr. Maj (Dr.) J.C.Vashista, Advocate and
                          Ms. Sandhya Sharma, Advocate

                Versus


        Joginder Kaur & Ors.                          ... Respondents
                           Through: Mr. P.K.Rawal, Advocate and
                           Mr. Ajay Bahl, Advocate

JUSTICE SHIV NARAYAN DHINGRA

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

2. To be referred to the reporter or not?                                  Yes.

3. Whether judgment should be reported in Digest?                          Yes.

JUDGMENT

By this petition, the petitioner has assailed an order dated 16 th

February, 2010 whereby two applications of the petitioner under Section 151

CPC for recalling the order dated 14th December, 2009 and waiver of cost

respectively were dismissed.

2. Brief facts relevant for the purpose of deciding this petition, are

that on 14th December, 2009, the case was called several times by the Court

since morning, at 2.10 p.m. since none appeared for defendant, defendant's

(petitioners herein) evidence was closed. Cost imposed on previous hearing,

to be paid on that day was also not paid. The matter was listed by the trial

Court for 16th February, 2010 for final arguments. When the matter was taken

up on 16th February, 2010, the counsel for the defendant appeared and told

the court that he had made an application for recalling the previous order

dated 14th December, 2009. This application was dismissed by the trial court

after noting the manner in which the defendant had impeded the trial and

protracted the trial.

3. I have perused various order sheets placed on record by the

respondents, who appeared in the Court on caveat. These proceedings show

that only effort of the defendant from day one had been to impede the trial and

to protract the trial. The defendant was proceeded ex parte on 29 th March

2005 as defendant chose not to appear even upto 2.30 p.m. and the matter

was listed for ex parte evidence. The defendant then made an application

under Order 9 Rule 7 CPC for setting aside the ex parte order. This

application was allowed subject to cost of Rs.500/- and the matter was listed

for admission/denial on 30th September, 2005. On 30th September, 2005

defendant did not come forward for admission/denial and adjournment was

sought by defendant for this purpose. Adjournment was granted despite

opposition from the plaintiff subject to cost of Rs.250/- and the matter was

listed on 10th November, 2005. On 10th November, 2005 proxy counsel for

defendant appeared, no admission/denial was done and again an application

for adjournment was made. The court observed that defendant will face

consequences of non-appearance for admission/denial on the next date and

listed the matter for arguments on an interim application and for framing of

issues. The matter was taken up on 27th January, 2006 and again a request

of defendant was received by the court for adjournment for arguments on

interim application and for framing of issues. The court framed the issues and

listed the matter for evidence. The matter was taken up for plaintiff's

evidence on 23rd March, 2006. The plaintiff's witness was to be cross

examined on that day. Defendant again sought adjournment on the ground

that counsel was not available, which was given subject to cost of Rs.500/-

and the matter was posted for 11th May, 2006. On 11th May, 2006, an

application for amendment of issues was made, again witness was not cross

examined. The court dismissed the application and adjourned the case for

cross examination of witness subject to cost of Rs.500/- and the matter was

listed for 5th August, 2006. On 5th August, 2006 the plaintiff counsel was not

available, so the matter was adjourned. Ultimately this witness of plaintiff was

cross examined by defendant on 15th March, 2007 and plaintiff evidence was

closed. The matter was listed for defendant's evidence on 8th May, 2007.

Again a series of adjournments were sought by defendant for producing

evidence on 8th May, 2007, 31st July, 2007, 9th October, 2007 and 1st

November, 2007 - every time adjournment was granted subject to cost of

Rs.500/- or Rs.1,000/-. The matter was then listed for 14th January, 2008

when DW-1 was partly cross examined and it was again fixed for 31 st March,

2008. On that day DW-1 again did not appear. The court again adjourned

the case for 1st April, 2008. On 1st April, 2008 again an application was made

that DW-1 was not available and he was in Ahmadabad, again the matter was

adjourned. On 5th May 2008, DW-1 was partly cross examined and the

matter was listed for remaining cross examination on 8th July, 2008. On 8th

July, 2008 DW-1 did not appear on the ground of illness, the matter was fixed

for 15th September, 2008. On that day during cross examination, DW-1 stated

that he was not feeling well and the cross examination was deferred and was

listed on 25th October, 2008. On 25th October, 2008 again DW-1 did not

appear on the ground of illness. The matter was listed on 15th December,

2008 when DW-1 was partly cross examined and the matter was listed on 20th

February, 2009. On 20th February, 2009 proxy counsel for defendant

appeared, no DW appeared and the matter was listed for cross examination

of defendants' witness on 3rd July, 2009. On 3rd July, 2009 again an

application was made for adjournment which was opposed still the matter was

adjourned. On 9th September, 2009 again an application for non appearance

of DW-1 was made on the ground that he was having throat infection. The

Court granted this adjournment subject to cost of Rs.7000/- and listed the

case for 14th December, 2009. Again when neither defendant nor counsel

appeared, the defendant's evidence was closed taking testimony of DW-1 out

of record since he did not appear for cross examination. The learned trial

Court in the order dated 16th February, 2010 noted few of the dates on which

adjournments had been sought and dismissed the application for recalling

order dated 14th December, 2009.

4. I consider that looking at the manner in which the defendant had

deliberately been dragging the case and seeking adjournment after

adjournment on flimsy, untenable grounds and the trial Court had been

obliging defendant, it only shows that the trial was being impeded by the

defendant at his whims and fancies and he wanted it to be extended to any

length of time. I consider that the trial Courts while exercising discretion of

giving adjournments must be careful and should not impose paltry costs of

Rs.250/- or Rs.500/- which seem to be no costs in the present days. The

costs imposed by the trial Courts must be realistic costs taking into account

the time of the court wasted every time when the case is called and also

taking into account the harm which is being caused to the entire judicial

system by such kinds of adjournments and the sufferings of the plaintiff.

When the costs are realistic, keeping in view the present day value of money

then only defendant seeking adjournment may be deterred from seeking such

frequent adjournments. Where the costs are so paltry as is reflected in orders

such as Rs.250, Rs.500/- or Rs.1,000/-, such costs encourage the party to

seek adjournments because the cost of prolonging the case for few months

comes out hardly Rs.200/- p.m. and anybody would happily pay such cost and

keep the case prolonging. Thus, while adjournments are given on such

grounds which the trial court may consider compelling, such adjournments

must be given subject to realistic cost and not paltry and unrealistic cost.

5. In this case, the petitioner seems to have got encouraged for

taking adjournment after adjournment by the paltry costs of Rs.500/- or

Rs.250/- being imposed by the trial court. No justification whatsoever can be

there on the part of the petitioner in not appearing on the date fixed. Excuse

made by the counsel for the petitioner in the court that he had wrongly noted

date of 24th instead of 14th is also a lame excuse. When the court announced

date of 14th December, nobody could have noted it as 24th December, as

there was no phonetic similarity between 24th and 14th in any language. I find

that this petition is a gross misuse of the judicial process.

The petition is dismissed with costs of Rs.10000/- to be paid in

Delhi High Court Legal Services Authority.

March 12, 2010                             SHIV NARAYAN DHINGRA, J.
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