Delhi High Court
Ms. Suman Kumari vs Shri Vijay Kumar Sharoha & Ors. on 16 September, 2014
Author: Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 03.03.2014
Date of Decision: 16.09.2014
+ CM (M) No. 165/2014 & CM No.2988/2014
MS. SUMAN KUMARI ...... Petitioner
Through: Mr. Mukesh Sharma, Adv.
Versus
SHRI VIJAY KUMAR SHAROHA & ORS. ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J.
1. This petition impugns three orders dated 03.04.2013, 31.07.2013 and
29.01.2014 passed by the learned Trial Court in suit No. 148 of 2013. By
the first aforesaid order, the case was listed for admission and denial of
documents, framing of issues and arguments on the interim application. The
Court noted that the matter was passed over several times since morning but
nobody had appeared for defendant Nos.1 and 2 and accordingly these
defendants were proceeded ex-parte. Defendant Nos. 3 and 4 were given
four weeks to file their Written Statement (WS). Parties were at liberty to
file their respective original documents and they were further directed to be
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present on the next date of hearing for conducting admission denial of
documents. On 31.07.2013 Defendant Nos. 1 and 4 were present in person.
Defendant No. 3 was represented by counsel but none had appeared for
defendant No. 2. The Court was of the view that defendant No. 1 was not
the main contesting defendant who had been served on 13 th February, 2013
but since no WS had been filed, the right to file WS should be closed and
her defence was also struck off. The Court framed four issues and
furthermore, noted that no other issue arose or had been pressed for. List of
witnesses were directed to be filed within 15 days thereof. After exchange
of copies between the parties, affidavit by way of evidence of witnesses of
the plaintiff was required to be filed in the Court before the next date of
hearing which was fixed as 30.08.2013.
2. The learned counsel for the petitioner submits that on 11 th October,
2013, the petitioner appeared before the Trial Court along with her husband
but due to default in appearance of their counsel, the matter was adjourned
for cross examination. It was further submitted that on 21 st November, 2013
when the case was next listed, the petitioner i.e. defendant No. 1 again
appeared before the Court along with her counsel and PW-1 and PW-2 were
examined and discharged; that the petitioner's counsel had drawn the
attention of the Court to their application under Order 9 Rule 7 CPC and
another application seeking review of the order of 31.07.2013 whereupon
the matter was adjourned with direction to supply the copies of the
application to counsel for the plaintiff within a week thereof and the case
was then adjourned for arguments on the applications on 29 th January, 2014.
The two applications sought recalling of the ex parte order of 03.04.2013
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and review of the order of 31st July, 2013. They were filed under Order 9
Rule 7 CPC read with Order 8 Rule 10 CPC and Section 151 CPC.
3. This Court is of the view that the order dismissing the said application
on 29th January, 2014 does not suffer from any material irregularity and the
conclusion arrived at is based upon the records. It is noted that despite
service of notice and time having been granted for filing of WS, there was
default in filing it as well as in appearance before the Court on 03.04.2013.
Even on the next date i.e. on 31.07.2013, although the defendant No. 1, i.e.
the main contesting party appeared before the Court, yet no WS had been
filed. Hence, the Court was constrained to strike off the defence of the said
defendant and issues had been framed. Thereafter, defendant No. 1 was
permitted to participate in the proceedings and indeed, two witnesses of the
plaintiff had been cross examined by the said defendant and the case was
listed for cross examination of the plaintiff. The Court noted the argument
that the WS had been annexed along with the application for recall of the
order on 3rd of April, 2013 but that the Court did not consider it on
30.07.2013 and inadvertently, struck off the defence of defendant No. 1. The
Court found that there was no such document attached and concluded that
endeavour of learned counsel was only to create prejudice and to delay the
proceedings in the matter. The Court did not find any reason as to why the
said defendant did not file her WS and why her defence should be revived
particularly when her stand was not bona fide.
4. The learned counsel for the petitioner submits that the petitioner
would suffer because of negligence on the part of her counsel. The other
grounds in this petition relate to the merits of the matter. However, there is
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no other ground justifying the grant of any relief in the present petition.
5. This Court is of the view that where a party itself has indulged in
sharp practice of stating that the WS had been attached with the application
of recall of the order of 3.4.2013, when actually no such document had been
attached, and furthermore has failed to show any reason for not filing the
WS in time, and now has gone on to cross-examine the two witnesses of the
plaintiff and only plaintiff remains to be cross-examined, there is no case for
setting aside the impugned orders. The petition is without merit. It is
accordingly, dismissed.
NAJMI WAZIRI, J.
SEPTEMBER 16, 2014/acm
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