Brij Bhushan vs Sh. Sri Chand Verma And Ors.
2014 Latest Caselaw 3695 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CRP No.41/2013

%                                                    13th AUGUST, 2014

BRIJ BHUSHAN                                               ......Petitioner
                          Through:       None.



                          VERSUS


SH. SRI CHAND VERMA AND ORS.               ...... Respondents

Through: Mr. Pramod Kumar Sharma, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this revision petition under Section

115 of Code of Civil Procedure, 1908 (CPC) is to the two orders dated

19.11.2012 and 23.1.2012.

2 (i). By the first order dated 19.11.2012 the suit was adjourned subject to

payment of costs only of Rs.3,000/- inasmuch as the petitioner/plaintiff was

causing an adjournment by not filing the application to bring on record the

legal heirs of respondent no.1/defendant no.1 in the trial court. At this stage,

it be noted that the plaintiff is the son of respondent no.1/ defendant no.1 in

the trial court and the other legal heirs of the respondent no.1/defendant no.1

including the other defendants in the suit were already on record.

(ii) The second order is dated 23.1.2012 by which the suit was dismissed on

account of contumacious of the plaintiff/petitioner in not paying even the

nominal costs of Rs.3,000/- on the alleged ground that the application for

transfer of the suit was filed before the District Judge.

3. In my opinion, both the orders show that neither the

petitioner/plaintiff nor his counsel have acted fairly. Merely because a

transfer application is filed, Courts are not bound to adjourn the suits more

so in facts such as the present. Also, if Courts are forced to adjourn the

matters in facts such as the present, a litigant or his counsel will not allow

the suit proceedings to continue at their whims and fancies.

4. Ordinarily this Court would have been liberal with respect to

grant of restoration of the suit, however, the uncalled behaviour of the

petitioner and his counsel does not permit this Court to interfere with the

impugned orders which clearly reflect upon the undesirable conduct of the

petitioner/plaintiff and his counsel.

5. Let me at this stage, reproduce both the impugned orders and

which will show lack of bonafide actions on the part of the petitioner and his

counsel.

"Order dated 19.11.2012

Present: None for the plaintiff.

Shri Pramod Kumar Sharma, advocate, counsel for the defendants no.1 to 3.

Defendant no.4 ex-parte.

None appeared for the plaintiff. Be awaited.

ADJ (Central-07)/Delhi.

19.11.2012.

Present: Shri Ravinder Dabas, Advocate, proxy counsel for the plaintiff alongwith the plaintiff.

Shri Pramod Kumar Sharma, advocate, counsel for the defendants no.1 to 3.

Defendant no.4 ex-parte.

It is 11.00 a.m. This is second call. Admittedly, defendant no.1 has expired. The plaintiff has not moved an application to implead his legal heirs on record though he sought time on 29.09.2012. Proxy counsel for the plaintiff submits that case file could not be traced out, therefore, the application could not be moved and he seeks adjournment. Adjournment sought is strongly opposed by the counsel for the defendant no.1,2 and 3. At this stage, proxy counsel for the plaintiff submits that the plaintiff has already moved an application for transfer of the present suit before the Ld. District & Sessions Judge which is lited for hearing on 20.11.2012. Proxy counsel for the plaintiff as well as the plaintiff admit that there is no stay of the present suit as on date.

Counsel for the defendants no.1 to 3 submits that he is not aware of any such transfer application. He also submits that once the case file was

not traceable then how did the plaintiff move an application for transfer before the Ld. District Judge. He also submits that the plaintiff has not moved the application deliberately and is thereby delaying the matter. Perusal of the order dated 22.08.2012 also reveals that the counsel for the plaintiff misled this court regarding proceedings initiated by the plaintiff in suit no.100/2001. In view thereof, the submissions made by the proxy counsel for the plaintiff does not inspire confidence of the court. However, in the interest of justice, last opportunity is granted to the plaintiff to move the application within 02 weeks from today with advance copy to the counsel for the defendants subject to cost of Rs.3,000/-.

Put up for payment of cost and further proceedings on 23.01.2013.

(PANKAJ GUPTA) ADJ(Central-07)/Delhi 19.11.2012

Order dated 23.1.2012

CS. No.428/2010

Brij Bhushan vs. Sri Chand Verma & Ors.

23.01.2012

Present: Plaintiff in person.

Son of the deceased defendant no.1.

None for the defendant no.2 and 3.

The defendant no.4 is ex-parte.

The plaintiff seeks pass over. Request is allowed.

Be awaited.

ADJ(Central-07)/Delhi

Present : Shri I P Singh, advocate, counsel for the plaintiff.

Shri Pramod Kumar Sharma, advocate along with son of the deceased defendant no.1.

None for the defendant no.2 and 3.

The defendant no.4 is ex-parte.

Counsel for the plaintiff moved an application under Order 22 Rule 4 of CPC. Copy given. Counsel for the defendant submits that he shall address the arguments straightway without filing the reply.

I have heard Ld. Counsel for the parties and have perused the material available on record.

Admittedly, there is no stay of the present proceedings as on date.

Counsel for the plaintiff submits that the legal representatives of the deceased defendant no.1 are already on record and may be taken on record accordingly. He also submits that the plaintiff has already moved a transfer application before the Ld. District & Sessions Judge for transfer of the present suit from this court to some other court and the same is listed for hearing on 12.02.2013. In view thereof, this court may stay the proceedings till disposal of the transfer application by Ld. District & Sessions Judge. He also submits that there was no occasion for this court to impose the cost upon the plaintiff because period of limitation for filing the application under Order 22 Rule 4 of CPC had not expired. As such, this court was not justified in imposing the cost. The plaintiff has made all the prayers to this effect in the present application only, which are otherwise not maintainable in the present form.

Counsel for the defendant submits that so far as LRs of the deceased defendant no.1 are concerned, he has been submitting since day one that all his LRs are already on record and therefore, there is no need to move an application for the same. Despite that the plaintiff took several adjournments on the said account. Now, he has moved the present application with the same prayer. In view thereof, he submits that he has no objection if the prayer clause 'a' of the application is allowed. In view thereof, the prayer clause 'a' is allowed.

Admittedly, there is no stay of the present proceedings by the Ld. District & Sessions Judge. I am not aware on what grounds the transfer application has been moved by the plaintiff before Ld. District & Sessions Judge. This court is discharging the judicial functions as per law. Therefore, this court sees no reason to send case file to the Ld. District & Sessions Judge for transfer. For the aforementioned reasons, this court also do not see any reason to stay the present proceedings. Therefore, the prayer clause 'd' made in the application is declined.

So far as non payment of cost is concerned, counsel for the plaintiff submits that since the limitation period to move the application had not been expired, hence, there was no occasion for this court to impose the said cost. Admittedly, the defendant no.1 expired on 29.08.2012/30.08.2012. The plaintiff being son of the deceased defendant no.1 was well aware of the said fact on that date itself. Despite that the plaintiff had not moved the application. On 29.09.2012, he sought time to file the application which was allowed. On 29.11.2012 also, the application was not moved. On 29.11.2012, the plaintiff sought adjournment on flimsy and bogus grounds which was disallowed by this court vide detailed order and one last opportunity was granted to take the steps subject to cost of Rs.3,000/-. Therefore, cost was imposed for the conduct of the plaintiff and not for non filing of the application. Therefore, there is no substance in the plea raised by counsel for the plaintiff. Prayer Clause 'c' is declined accordingly.

The application is disposed of accordingly.

In response to a query, the plaintiff submits that he shall not pay the cost. In view thereof, I am of the opinion that the plaintiff is deliberately avoiding to comply the order passed by this court. Therefore, the suit is dismissed for non prosecution. File be consigned to Record Room.

(PANKAJ GUPTA) ADJ(Central-07)/Delhi 23.01.2012"

6. At this stage, counsel for the respondents states that even earlier

a similar suit was filed by the same petitioner/plaintiff for the same reliefs,

and this suit was also dismissed in default on 14.10.2005.

7. In this view of the matter, there is no merit in the petition and

the same is therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J AUGUST 13, 2014 Ne