Delhi High Court
Smt. Satpal Kaur vs Shri Narender Pal on 28 February, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 28.02.2011
+ RSA No.40/2011 & CMs No.3333-37/2011
SMT. SATPAL KAUR ...........Appellant
Through: Mr. S.S. Dahiya & Ms. Divya,
Advocates.
Versus
SHRI NARENDER PAL ..........Respondent.
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated
11.10.2010 which had affirmed the findings of the trial Judge dated
06.07.2010 whereby the suit filed by the plaintiff Narender Pal
seeking recovery of `2,27,051/- from the defendant had been
decreed. Initially, the suit had been filed as a suit under Order
XXXVII of the Code of Civil Procedure (hereinafter referred to as
the 'Code'). Thereafter on an application for leave to defend, leave
to defend had been granted to the defendant; suit was treated as a
regular suit. On 14.05.2009, two issues were framed and the
parties had been directed to lead evidence by way of affidavit. The
plaintiff had filed his evidence by way of affidavit on 17.08.2009.
Matter was fixed for cross-examination of PW-1 on 23.09.2009 on
which date, he was examined and cross-examined in part. On
12.11.2009 request for adjournment was made by the defendant; it
was granted subject to payment of costs of `1,000/-. On the
following date, the Presiding Officer was on leave. On 27.01.2010,
the Court had noted that costs imposed upon the defendant had not
been paid. Adjournment was again sought to cross-examine PW-1
who was present. Right to cross-examine stood closed on that day.
On the following date, the Presiding Officer was on leave.
Thereafter on 31.03.2010, prosecution evidence was closed and the
matter was fixed for defendant's evidence. On the following date
i.e. on 21.04.2010, affidavit of the defendant was not filed; since no
cogent reason having been given for non-filing of evidence by way
of affidavit, the defendant's evidence was closed. Thereafter on
12.05.2010, an application was filed by the defendant under
Section 151 of the Code seeking a review of the said order. That
application was dismissed and the matter was fixed for final
arguments for 06.07.2010. Suit of the plaintiff was decreed on the
said date.
2 The appellate Court vide the impugned judgment had
endorsed the finding of the trial Judge.
3 This is a second appeal. On behalf of the appellant, it has
been urged that a valuable right of the defendant has been lost of
not having been heard because of negligence of her lawyer for
which she should not be made to suffer.
4 It is relevant to state that the present appeal has filed
belatedly. It is accompanied with an application under Section 5 of
the Limitation Act, 1963 seeking condonation of delay of 26 days.
The grounds of appeal have been embodied in page 8. Submission
of learned counsel for the appellant is that even presuming that no
ground is made out for recalling the judgment of the trial Judge,
yet it is necessary to point out that in all cases, the plaintiff has to
stand on his own legs and prove the pronotes on the basis of which
the suit of the plaintiff was decreed. It is pointed out that there is
discrepancy in the signatures of the appellant and this is evident
from the pronotes Ex. PW-1/1 to Ex. PW-1/4 and which have not
been signed by the defendant.
5 Attention has been drawn to the said documents. They are
dated 10.01.2004, 10.02.2004, 10.03.2004 & 10.04.2004 for the
sum of `45,000/-, `45,000/-, `50,000/- & `50,000/- respectively. All
the aforenoted pronotes show that they bear the signatures of
Satpal Kaur i.e. of appellant. Contention of the appellant is that
these signatures are forged and are not her signatures; this right of
adverting to this submission has been lost by the defendant. He
had valuable opportunities before the trial Court to cross-examine
the plaintiff as also to adduce evidence in her defence by way of
affidavit but she chose not to do so. The aforenoted ordersheets
reflect her negligence. Submission of the learned counsel for the
appellant that a litigant should not be allowed to suffer for the
lapses on the part of her Advocate had also been noted by the trial
Judge on 24.05.2010 wherein it had been recorded that on
27.01.2010, a fresh vakalatname had also been filed on behalf of
the defendant by another Advocate. Record shows that this position
is correct. Earlier counsel dealing with the case of the defendant
was Mr. Vipin Chaudhary. He had filed his power of attorney on
03.11.2006. Thereafter Mr. I.A. Rehmani and Mr. Divesh Malhotra
has filed their power of attorney on behalf of the defendant on
24.12.2010. Thus, this submission of the learned counsel for the
appellant that the litigant should not suffer for the lapses of the
Advocate is also not substantiated; the appellant was represented
by two separate Advocates.
6 Perusal of the trial court record has further shown that
initially when the suit was being tried as a summary suit, the
defendant had taken time for moving an application for leave to
defend which application had also not been filed in time. On
27.09.2007, the callous attitude of the defendant had been noted;
opportunity for supplying the copy for leave to defend accompanied
with the application for condonation of delay was closed and the
matter had been fixed for judgment on 29.09.2007. On the said
date, an application under Order XLI of the Code seeking review of
the said order had been filed which had been allowed on
01.08.2008. Record shows that the attitude of the
appellant/defendant has been negligent; almost to the point of
being callous. Such a litigant deserves no sympathy from the
Court. No substantial question of law has arisen.
7 Appeal as also pending applications are dismissed in limine.
INDERMEET KAUR, J.
FEBRUARY 28, 2011
A
