Arvinder Singh vs Amarjeet Singh Jolly And Ors
2013 Latest Caselaw 488 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision :1st February, 2013

+      CM(M) 130/2013

       ARVINDER SINGH                                    ..... Petitioner
                    Through :            Mr.Saurabh and Mr.Bimlesh
                                         Kumar, Advs.

                          versus

       AMARJEET SINGH JOLLY AND ORS.           ..... Respondents
                    Through : Mr.Lali Kumar and Mr.Shiv
                              B.Chetry, Advs. for R-2/MCD.

       CORAM:
       HON'BLE MS. JUSTICE PRATIBHA RANI

%
PRATIBHA RANI, J. (ORAL)

CM No.1791/2013 (Exemption)

1. Exemption allowed subject to all just exceptions.

2. Application stands disposed of.

CM (M). 130/2013 & CM. No.1790/2013 (stay)

1. The petitioner is impugning the order dated 03.07.2012 passed by learned Addl. Senior Civil Judge, Delhi whereby the evidence of the defendants No.2 to 7(including present petitioner, who being the owner of Shop No.35-B was impleaded as defendant No.5) in the Civil Suit No.822/08/00, was closed by the Court in view of their conduct of not

appearing in the case for a long time. After examining the witnesses on behalf of MCD (defendants No.1) and closing the evidence of defendants No.2 to 7, the case was listed for final arguments.

2. Thereafter, an application under Section 151 CPC was moved on behalf of defendants No.3, 5 and 7 seeking modification of the order dated 03.07.2012 whereby the evidence of defendants No.2 to 7 was closed.

3. In the application under Section 151 CPC, modification of order dated 03.07.2012 was prayed on the ground that they were regularly appearing till 25.04.2011 when defendant No.8, which is association of shopkeepers of Pleasure Garden Market, was presumed to be watching the interest of the shopkeepers. It was only when the evidence was closed vide order dated 03.07.2012, which fact came to the knowledge of the applicants through members of defendant No.8, that they filed the application under Section 151 CPC.

4. After considering the contentions raised, the Court dismissed the application under Section 151 CPC moved by defendants No.3, 5 and 7 for the reasons that :

(i) In the garb of modification of the order, infact the petitioners were seeking review of the order dated 03.07.2012;

(ii) Defendant No.3 expired in 2004 and his LRs were not brought on record;

(iii) Application was filed with supporting affidavit by Paramjeet Singh, who was not a party to the suit;

(iv) Defendants No.2 to 7 were represented through common counsel and Manjit Singh and Harbhagwan were produced as witnesses on their behalf and cross examined by plaintiff and MCD;

(v) No further witness was examined and there was also no list of witnesses on behalf of these defendants;

(vi) No explanation has been given as to why none of the defendants cared to appear after 25.04.2011.

5. Learned counsel for the petitioner submitted that defendants No.2 to 7 always remained under the impression that defendant No.8, which is shopkeepers' association is watching their interest, hence they did not appear before learned Trial Court under the bona fide belief that their interest is being watched by defendant No.8.

6. Even if it is considered to be the reason for defendants No.2 to 7 for not appearing in the case, defendant No.8 was taking care of interest of other defendants, they have failed to bring on record that defendant No.8 failed to honour its assurance given to them. Rather in the application itself, it is mentioned that member of defendant No.8 informed the other defendants that the defendant's evidence had been closed. It is for the concerned parties to be vigilant and watch their interest. It is an admitted fact that after 25.04.2011 defendants No.2 to 7 did not appear before the concerned Court of their own. It is not clear if the counsel representing these defendants was instructed not to appear on their behalf or he himself preferred not to appear for want of further instruction.

7. A party who failed to appear in the Court despite having knowledge of the pendency of the case, has to suffer the consequences to

be followed due to non-appearance. Here, it is not a case of ignorance of the proceedings going on, rather deliberate act on the part of the defendants No.2 to 7 (defendants No.3 has expired in the year 2004) not to take part in the proceedings, leaving no option before the Court but to close the evidence of these defendants.

8. Inherent power cannot be exercised by the Court to come to the rescue of the party who prefers to abandon the proceedings and wait for the adverse order to be passed and then move an application for reversal of the stage of trial thereby causing prejudice to the plaintiff and delay in disposal of suit.

9. Proceeding under Article 227 of The Constitution of India is an extraordinary discretionary constitutional remedy to advance justice and not to thwart it. In exercise of power under Article 227 of The Constitution of India, this Court will interfere only when error of law is apparent on the face of record which has resulted in gross injustice.

10. Finding no illegality or infirmity in the impugned order, the present petition is hereby dismissed. All pending applications are also dismissed.

PRATIBHA RANI, J

February 01, 2013 'st'