Delhi High Court
Mohit Kumar vs Quality Printers Pvt Ltd & Ors on 26 August, 2015
Author: Rajiv Shakdher
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 174/2015
MOHIT KUMAR ..... Appellant
Through: Mr. Vivek Sood, Sr. Adv. with
Mr. B.S. Tomar, Adv.
versus
QUALITY PRINTERS PVT LTD & ORS ..... Respondents
Through: Mr. Amit S. Chadha, Sr. Adv. with
Mr.Kunal Sinha, Adv. for R1&2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 26.08.2015
CM No.16923/2015 (for condonation of delay in re-filing the CM
No.16922/2015)
1. This is an application seeking condonation of delay in re-filing CM
No.16922/2015. The delay is of 18 days.
2. Though Mr. Chadha, learned senior counsel for the non-
applicant/respondent, opposes the plea for condonation of delay because of
the past conduct of the applicant/appellant; the delay is, however, condoned,
having regard to the fact that the period involved is short.
3. The application is disposed of.
CM No.16922/2015 (u/S 151 CPC for hearing the appeal on merits)
4. This is an application in which a prayer has been made that the appeal
be heard on merits. This prayer is made in the background of the order dated
29.5.2015, passed by this Court, whereby this court, after noticing the
contours of the litigation obtaining between the parties, in paragraphs 5, 6
and 7 made the following observations:
"5. At this stage, the appellant agrees to deposit
Rs.1,55,000/- with the Registrar General of this Court
subject to final outcome of this appeal and submits that
one opportunity may be given to him to lead the
evidence.
6. Learned counsels for respondents no.1, 2 and 3
submit that without prejudice to their rights and
contentions, they have no objection to the proposal given
by the appellant.
7. With the consent of the appellant and respondents
no.1, 2 and 3, impugned order dated 29 th January, 2015 is
set aside subject to deposit of Rs.1,55,000/- by the
appellant with the Registrar General of this Court within
a period of four weeks. The aforesaid amount shall be
kept in fixed deposit till further orders."
5. As would be apparent, the impugned order, which is passed by the
trial court and is dated 29.1.2015, was set aside by my predecessor with the
consent of the applicant/appellant and non-applicant/respondent Nos.1 to 3
subject to a deposit, in the sum of Rs.1,55,000/-, being made by the
applicant/appellant with the Registrar General of this Court within a period
of four weeks. The said amount, as per the aforementioned directions, was
to be kept in a fixed deposit till further orders. Admittedly, this condition
has not been complied with.
5.1 The other directions issued, vide order dated 29.5.2015, would show
that the applicant/appellant was given an opportunity to produce the entire
evidence before the trial court on 16.7.2015.
6. It is conceded before me, by Mr. Sood, that on 16.7.2015, the
applicant/appellant was not present in Court. Consequently, the trial court
dismissed the suit once again.
7. Mr. Sood, learned senior counsel appearing for the
applicant/appellant, says that since the applicant/appellant was not in a
position to deposit the sum of Rs.1,55,000/-, a prayer has been made in the
instant application that the appeal be heard on merits.
8. It may be important to note that the genesis of the crystallisation of
the amount indicated in the order dated 29.5.2015 lies in another order
passed by this Court, on 29.10.2014, in CM (M) No.957/2014. In those
proceedings, taken out by the applicant/appellant, the trial court's order
dated 1.10.2014 whereby, his application under Order I Rule 10 of the Code
of Civil Procedure, had been dismissed, was assailed. The plea in the
application, broadly, was to implead two other co-owners as defendants to
the suit.
9. While dismissing the petition, the learned Single Judge of this Court
in the very same order, i.e. order dated 29.10.2014 issued the following
directions in paragraph 9:-
"9. In view of the above, the present petition is
completely lacking in substance and an endeavour to
malafidely delay and drag the suit filed by the
petitioner/plaintiff himself and thus cause harassment and
prejudice to the respondents/defendants. The present
petition is accordingly dismissed with actual costs and
which costs will be the costs for today's hearing incurred
by the respondents. Certificate of fees on behalf of the
respondents be filed within a period of one week from
today. Payment of costs by the petitioner to the
respondents which have been imposed by this judgment
will be a condition precedent for the petitioner to
continue with the suit in the trial court."
10. As would be evident upon a perusal of the aforesaid directions, the
learned Single Judge, Hon'ble Mr. Justice Valmiki Mehta, had indicated that
the petition is being dismissed with actual costs and those costs would
include costs incurred for the hearing held on that date before him. It
appears that a bill of costs was thereafter supplied by the non-
applicant/respondents to the applicant/appellant. The costs had been
pegged, accordingly, at Rs.1,55,000/-.
10.1 Thus, it is in this background, that the costs in the sum of
Rs.1,55,000/- got mentioned in the order dated 29.5.2015.
11. The quantification of the costs is, therefore, not in dispute since, the
appellant, as indicated above, agreed, at least, on 29.5.2015 to pay a sum of
Rs.1,55,000/-.
12. I may only indicate that this aspect attains even greater clarity by
virtue of order dated 27.1.2015, passed by Hon'ble Mr. Justice Valmiki
Mehta, in an application moved, before him, by the non-
applicant/respondent to seek clarification of the earlier order i.e. order dated
29.10.2014. The learned Single Judge in his order dated 27.1.2015, in no
uncertain terms, indicated quite explicitly that the order was clear and
needed no clarification.
13.1 Therefore, as indicated above, the quantification of costs cannot be re-
visited in the present proceedings.
14. The averment made in the present application is, therefore, confined
to the inability to pay the sum of Rs.1,55,000/-.
14. In this context, I asked Mr. Sood, learned senior counsel, as to
whether the applicant/appellant is an income tax payee. Mr. Sood fairly
conceded that the applicant/appellant is an income tax payee. The
application is not accompanied by any income tax return, which would have
me accept the plea made before me, on behalf of the applicant/appellant, of
purported impecuniosity.
15. In view of the complete lack of material, I am not persuaded to
entertain this application. The application is, accordingly dismissed.
FAO 174/2015
16. The appeal is posted before me only to report compliance.
17. In view of the fact that I have dismissed CM No.16923/2015, no
further orders are called for in the appeal.
18. The suit as of today stands dismissed by virtue of the order passed by
the trial court on 16.7.2015.
RAJIV SHAKDHER, J
AUGUST 26, 2015
s.pal
