Neeta Ajay Kumar & Ors. vs Veena Narang & Anr.
2012 Latest Caselaw 6952 Del

$~6
*   IN THE HIGH COURT OF DELHI AT NEW DELHI

+     I.A. No. 15329/2012 (by the defendant u/S 5 & 14 of the
      Limitation Act) & OA No.90/2012 in CS(OS) 2382/2009

                                        Date of Decision: 5.12.2012

IN THE MATTER OF

NEETA AJAY KUMAR & ORS.                      ..... Plaintiffs
                   Through         Mr. Amar Khera, Advocate

                 versus

VEENA NARANG & ANR.                            ..... Defendants
                       Through     Mr. Lalit Gupta and Mr. Ashish
                                   Kumar, Advocates

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

I.A. No. 15329/2012 (by the defendant u/S 5 & 14 of the Limitation Act) & OA No.90/2012 in CS(OS) 2382/2009

1. The present application has been filed by the defendant

(appellant herein) for condonation of delay in filing the accompanying

Chamber Appeal. Although notice was issued only on the application,

counsel for the non-applicant/plaintiff has filed a composite reply to

the Chamber Appeal and the interim application and both the parties

have addressed arguments not only on the application, but also on the

appeal.

2. In view of the above, both, the present application and the

Chamber Appeal are taken up for final disposal today itself.

3. The relevant sequence of events that has led to the filing of the

present Chamber Appeal, accompanied by an application for

condonation of delay, is that vide order dated 25th April, 2011, the

Joint Registrar was pleased to discharge PW-1, Smt. Neeta Ajay

Kumar (plaintiff No.1 herein) after closing the opportunity of cross-

examining the said witness on account of delay on the part of the

learned counsel for the defendant in appearing before him.

4. Aggrieved by the aforesaid order, on 30th June, 2011 the

defendant No.1 had filed an application under Order 18 Rule 17 of the

CPC, registered as I.A.No.10271/2011. The application was listed

before the Joint Registrar on 4th July, 2011 and notice was issued to

the plaintiff, returnable on 5th September, 2011. Thereafter, the

application was listed before the Joint Registrar from time to time and

finally, on 4th May, 2012, the same was directed to be placed before

the Court.

5. On 17th July, 2012, when the application was placed before the

Court, after addressing the arguments at some length, counsel for the

defendant had sought leave to withdraw the aforesaid application

while reserving the right of the applicant to file an appropriate

application to seek review/file an appeal in respect of the order dated

25th April, 2011, passed by the Joint Registrar. Leave, as prayed for,

was granted to the defendant and the application was dismissed as

withdrawn.

6. Thereafter, on 18th August, 2012, the defendant filed the present

Chamber Appeal, along with I.A. No.15329/2012, praying inter alia for

condonation of 438 days delay in filing the appeal.

7. A perusal of the order sheet would reveal that on 24th

November, 2010, PW-1 had entered the witness box and when her

examination-in-chief was concluded, she was partly cross-examined,

whereafter, the matter was adjourned to 17th February, 2011 for

further cross-examination of the said witness.

8. On 17th February, 2011, PW-1 was again partly cross-examined

and her further cross-examination was deferred at a request made by

the counsel for the plaintiff who had stated that he would not be

available in the post lunch session. The said order took notice of the

fact that prior to starting the cross-examination of PW-1, the chief-

examination of PW-2 was also recorded to save time and then his

cross-examination was deferred.

9. On the next date of hearing, i.e., on 25th April, 2011, the Joint

Registrar had recorded that initially, the matter was called at 1:05 pm

and at that time, counsel for the defendant had appeared and sought

a pass over, which was opposed by the other side. However, the

request for pass over was declined and the said witness was tendered

for cross-examination by Mr. Pandey, proxy counsel for the

defendants. As he did not ask any questions, the said witness was

discharged. The said order had also recorded the fact that by the time

PW-2 was administered oath, Mr. Lalit Gupta, Advocate had arrived

and at that point, the time recorded was about 01.12 p.m. Learned

counsel for the appellant/defendant then cross-examined PW-2 and

requested that PW-1 be recalled for further cross-examination but his

request was turned down and he was advised to file an application.

With the aforesaid orders, further cross-examination of PW-2 was

adjourned to 5th September, 2011.

10. It was in this duration that the defendant had filed an application

under Order XVIII Rule 17 CPC for recall of the aforesaid order. As the

maintainability of the same was questioned by the counsel for the

plaintiff, vide order dated 10.02.2012, the Joint Registrar directed that

the said application be listed before the Court. As noted above,

ultimately, the aforesaid application was permitted to be withdrawn by

the counsel for the appellant/defendant on 17th July, 2012 while giving

him an opportunity to file an appropriate appeal/review application in

accordance with law.

11. Learned counsel for the appellant/defendant states that the

delay on his part in reaching the court of the Joint Registrar on 25 th

April, 2011 was bonafide as he was held up in Court in some other

matter. He submits that in any case, the delay of seven minutes

occurred in reaching the chamber of the Joint Registrar on account of

the fact that he was in the main block of the Court Complex and it

took him that much time to reach the court of the Joint Registrar. He

also points out that if the intention of the appellants/defendants was

to delay the proceedings then he would not have proceeded to cross-

examine the other witness of the plaintiff, i.e., PW-2. However, on the

very same date, the said witness was duly cross-examined by him and

in that duration, PW-1 had remained present but despite the same,

learned counsels request for permitting her further cross-examination

was unreasonably opposed by the other side and therefore, the delay,

if any, in concluding the evidence of PW-1 is attributable to the

plaintiff.

12. Learned counsel for the plaintiff opposes the Chamber Appeal

and the application for condonation of delay on the ground that the

appellant/defendant has deliberately delayed the cross-examination of

PW-1 and in any case, the delay of 438 days in filing the Chamber

Appeal ought not to be condoned for the reason that the appeal ought

to have been filed by the defendant within 15 days from the date of

passing of the impugned order dated 25th April, 2011, i.e., on or

before 10th May, 2011, whereas the same actually came to be filed as

late as on 18th August, 2012. It is further stated that even on an

earlier occasion, the application of the appellant/defendant filed under

Order XVIII Rule 17 CPC, i.e., I.A. No.10271/2011 was belated, having

been filed after a delay of 51 days, if reckoned from 10th May, 2011.

13. As regards the submission of counsel for the appellant/defendant

that when the matter was called for recording the cross-examination

of PW-1, his absence was bonafide, it is stated that the explanation

offered is untenable for the reason that the defendants were all along

aware of the date fixed before the learned Joint Registrar and the

purpose for which it was fixed and yet PW-1 was not cross-examined

on the said date. It is therefore, submitted that there is no

justification for interfering with the impugned order passed by the

Joint Registrar where under the right of the defendants for further

cross-examination of PW-1 was closed.

14. The Court has heard the counsels for the parties and considered

their respective submissions. Taking the application for condonation

of delay first, in view of the fact that the defendants had initially filed

an application under Order XVIII Rule 17 CPC for recalling the interim

order dated 25th April, 2011, which was ultimately withdrawn by them

on 17th July, 2012, it cannot be said that there was a gross and

inexplicable delay on their part in assailing the order dated 25th April,

2011. It is a different matter that ultimately the said application was

withdrawn by the defendants upon realizing that the proper remedy

against the impugned order dated 25th April, 2011 was by filing a

Chamber Appeal.

15. An Appeal ought to have been preferred by the

appellant/defendant against the impugned order within a period of 15

days i.e., on or before 10th May, 2011. However, the aforesaid

application for assailing the said order came to be filed by the

defendants on 30th June, 2011, during the period of the summer

vacations and prior to the first working day, upon the Court re-

opening.

16. The aforesaid delay can also not be treated as so inordinate as

to non-suit the defendants. In the given circumstances, the Court is

satisfied that the delay in filing the accompanying appeal ought to be

condoned and the appeal ought to be heard on merits. Accordingly,

the delay in filing the accompanying Chamber Appeal is condoned and

the application is disposed of.

17. Coming next to the Chamber Appeal, the Court finds that there

is merit in the submission made by learned counsel for the defendant

that it was not on his account that the trial in the case got delayed.

As noted above, PW-1 was partly cross-examined by him on 24th

November, 2010 and on 17th February, 2011 and on the latter date, as

learned counsel for the plaintiff was unavailable till 3.30 pm and

thereafter, the witness was unable to wait on account of her personal

difficulty, that her cross-examination was deferred to 25th April, 2011.

18. A perusal of the proceedings recorded by the Joint Registrar on

25th April, 2011 would reveal that Mr. Lalit Gupta, Advocate, had

reached the court of the Joint Registrar at 1.12 pm, i.e., within seven

minutes of the matter being called for the purpose of recording the

cross-examination of PW-1 and three minutes short of the lunch

recess. In such circumstances, by no stretch of imagination can the

delay on the part of the learned counsel for the defendants in reaching

the Court of the Joint Registrar be termed as so inordinate as to close

the right of the defendants to cross-examine the said witness.

19. The opposition of the counsel for the plaintiff to the request

made by the counsel for the defendants for an opportunity to conclude

the cross-examination of PW-1, appears to be unreasonable, more so

when the counsel for the plaintiff was himself unavailable on the said

date, and only his proxy counsel was present.

20. In any case, it is not as if the case was adjourned on 25 th April,

2011 without recording the evidence of any witness produced by the

plaintiff. Rather, the order sheet of 25th April, 2011 reflects that on

the said date PW-2 was partly cross-examined by the counsel for the

defendants. In view of the above, the Court is of the opinion that the

counsel for the defendant ought not to be blamed for such minimal

and negligible delay on account of circumstances that were beyond his

control.

21. As a result of the aforesaid discussion, it is deemed appropriate

to allow the present appeal and permit the defendants to conclude the

cross-examination of PW-1.

22. As counsel for the parties state that the next date of hearing

fixed before the Joint Registrar for the further cross-examination of

PW-2 is 31st January, 2013 at 2:15 pm, it is directed that on the said

date, in the first instance, the cross-examination of PW-1 shall be

concluded before proceeding to cross-examine PW-2. It is further

clarified that if the counsel for the defendants remains unavailable for

cross-examining PW-1, then no further opportunity shall be granted in

this regard. Counsel for the plaintiff shall ensure the presence of PW-1

on the aforesaid date.

23. The present appeal is disposed of.

HIMA KOHLI, J DECEMBER 05, 2012 rs