Delhi High Court
Nirmal Tower Building Occupants ... vs Nirmal Tower Building Pvt Ltd & Anr on 26 February, 2014
Author: Badar Durrez Ahmed
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 26.02.2014
FAO(OS) 111/2014
NIRMAL TOWER BUILDING OCCUPANTS WELFARE SOCIETY
(REGD.) ..... Appellant
versus
NIRMAL TOWER BUILDING PVT LTD & ANR ..... Respondents
Advocates who appeared in this case:
For the Appellant : Mr Sudhanshu Batra, Sr. Advocate with Mr Anshuj Dhingra,
Mr Anubhav Mehrotra and Mr Shailendra Singh.
For the Respondents : Dr Manmohan Sharma and Mr Anurag Pratap.
CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED, ACTING
CHIEF JUSTICE
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
JUDGMENT
BADAR DURREZ AHMED, ACJ (ORAL)
CAV 206/2014
The learned counsel for the caveator/respondent is present.
The caveat stands discharged.
FAO(OS) 111/2014 and CMs 3778-3780/2014
1. The present appeal has been filed against the order dated 29.01.2014
passed by a learned Single Judge of this court whereby the appellant's suit
[CS(OS) No.40/2005] has been dismissed for non-prosecution. Along with
the suit the interim order dated 13.01.2005 was vacated and also the pending
applications were treated as having become infructuous and as such were
dismissed. The learned Single Judge has also directed that no application for
restoration be entertained without the plaintiff depositing a sum of Rs.1 lakh
with the Delhi High Court Legal Services Committee by way of costs. While
dismissing the suit for non-prosecution the learned Single Judge placed
reliance on Order XVII Rules 2 and 3 of the Code of Civil Procedure, 1908.
2. At this juncture it would be relevant to set out the provisions of the
said Rules 2 and 3 of Order XVII CPC which read as under:
"2. Procedure if parties fail to appear on day fixed.-
Where, on any day to which the hearing of the suit is
adjourned, the parties or any of them fail to appear, the
Court may proceed to dispose of the suit in one of the
modes directed in that behalf by Order IX or make such
other order as it thinks fit.
Explanation.- Where the evidence or a substantial portion
of the evidence of any party has already been recorded and
such party fails to appear on any day to which the hearing
of the suit is adjourned, the Court may, in its discretion,
proceed with the case as is such party were present.
3. Court may proceed notwithstanding either party
fails to produce evidence, etc.- Where any party to a suit
to whom time has been granted fails to produce his
evidence, or to cause the attendance of his witnesses, or to
perform any other act necessary to the further progress of
the suit, for which time has been allowed, the Court may,
notwithstanding such default,-
(a) if the parties are present, proceed to decide the
suit forthwith, or
(b) if the parties are, or any of them is, absent,
proceed under rule 2."
3. A plain reading of Order XVII Rule 2 CPC would indicate that it
would apply, in the first instance, only if parties fail to appear on the day
fixed for hearing of the suit. In the present case, on 29.01.2014, when the
matter was taken up by the learned Single Judge, only IAs were listed for
hearing whereas the suit itself was to be taken up for hearing before the Joint
Registrar for the plaintiff's evidence. This would be evident from the order
sheet of the Joint Registrar and in particular the order passed on 12.09.2013
which reads as under:-
"12.09.2013
Present: Mr Anubhav Mehrotra, Advocate for the
Plaintiff
Mr Anurag Pratap, Advocate for the Defendant
CS(OS) 40/2005
No witness of the plaintiff is present nor summoned.
Despite last opportunity granted on 30.01.2013, no chief
affidavit has been filed on behalf of the plaintiff. Further
opportunity is strongly opposed by learned counsel for the
defendant. Learned counsel for the plaintiff explains that
they are trying to obtain photographs which would be
crucial even at this belated stage. I have also been taken
through the order dated 08.08.2013 of the Hon'ble Single
Judge.
In the interest of justice, subject to the cost of Rs 5,000/-
which shall be paid by the Plaintiff to the Defendant
within for weeks, last and final opportunity is granted to
the Plaintiff to file the evidence affidavit of their witnesses
within four weeks.
Re-list for plaintiff's evidence on 19.02.2014.
Sd/-
September 12, 2013 Sh.GIRISH KATHPALIA (DHJS)
Joint Registrar"
4. From the above extract it is evident that the plaintiff/appellant was
directed to pay costs of Rs.5,000/- to the defendant and a last and final
opportunity was granted to the plaintiff to file the evidence affidavit of its
witnesses within four weeks. The matter was to be listed before the Joint
Registrar on 19.02.2014 for the plaintiff's evidence. But, prior to that, by
virtue of the impugned order, the learned Single Judge dismissed the suit for
non-prosecution. On that date, i.e., 29.01.2014 only the applications filed by
the plaintiff being IA Nos.377/2009, 10122/2012, 16381/2012 and
12499/2013 were listed for hearing. The defendant's application being IA
No.18566/2012 was also listed for hearing. This would be evident from the
order dated 08.08.2013 passed by the learned Single Judge wherein all the
said IAs were directed to be listed before court on 12.12.2013. On that date,
the learned Single Judge was on leave and, therefore, the matter was
renotified for 29.01.2014. It is on 29.01.2014 that the impugned order came
to be passed whereby the suit was dismissed for non-prosecution.
5. As pointed out above, Order XVII Rule 2 CPC would not by itself
apply inasmuch as the parties were present before the learned Single Judge
on 29.01.2014. Insofar as Rule 3 of Order XVII CPC is concerned that
would also have no application because the time granted to the plaintiff to
produce its evidence had not expired inasmuch as the date fixed before the
Joint Registrar was 19.02.2014. Therefore, it cannot be said that the plaintiff
had failed to produce his evidence by the date on which the suit was listed,
i.e., 19.02.2014. Furthermore, we note that Order XVII Rule 3 gives two
options to the court whenever there is default on the part of a party. Those
two options are:- (a) if the parties are present, the court can proceed to decide
the suit forthwith; and (b) if the parties are, or any of them is, absent, to
proceed under Rule 2. The impugned order is an order of dismissal of the
suit for non-prosecution. In other words the learned Single Judge did not
proceed to decide the suit forthwith and, therefore, did not adopt option (a).
On the other hand, the learned Single Judge dismissed the suit for non-
prosecution. In other words, he decided to proceed under Rule 2 and,
therefore, adopted option (b). But, that option was available to the learned
Single Judge only if the parties or any of them was absent. This was also
predicated on the premise that the suit ought to have been listed on that date
for hearing. Since none of the conditions stipulated in Rule 3 applied, in our
view, the learned Single Judge ought not to have dismissed the suit for non-
prosecution. Insofar as the question of payment of costs of Rs.5,000/- is
concerned as indicated in the Joint Registrar's order dated 12.09.2013, the
learned counsel for the appellant has paid the costs of Rs.5,000/- to the
learned counsel for the defendant in court today.
6. The impugned order is set aside. The suit stands restored and so too
the applications which had been disposed of on account of the suit being
dismissed for non-prosecution. The parties shall appear before the learned
Single Judge for consideration of the said IAs on 10.03.2014 in the first
instance. Insofar as the affidavit by way of evidence is concerned, the
appellant/plaintiff is given one opportunity to file the same within one week
from today. For this purpose the suit shall be listed before the Joint Registrar
on 06.03.2014. The appeal stands allowed as above. All the pending
applications also stand disposed of.
BADAR DURREZ AHMED, ACJ
SIDDHARTH MRIDUL, J
FEBRUARY 26, 2014
mk
