Delhi High Court
M/S Om Dairy & Ors vs Pushpa Singhal on 13 March, 2015
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 216/2015 & CM 4677/2015 (stay)
% Decided on: 13th March, 2015
M/S OM DAIRY & ORS ..... Petitioner
Through Mr. Vivek B. Saharya, Adv.
versus
PUSHPA SINGHAL ..... Respondent
Through
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. The respondent/plaintiff filed a suit for recovery of possession and
damages/use & occupation charges against the petitioner/defendant herein.
The plaintiff closed her evidence on 1st September, 2012 and the matter was
listed for evidence of the petitioner/defendants on 18th October, 2012 when
examination-in-chief of DW-1 and DW-2 was recorded and DW-1 was
partly cross-examined. On 10th December, 2012 the plaintiff/respondent did
not appear and thus the matter was adjourned to 11th January, 2013 when the
Presiding Officer was on leave. Again on 1st February, 2013 neither the
plaintiff nor her counsel appeared and the matter was adjourned to 20 th
February, 2013. Thus the right of the plaintiff to cross-examine defence
witnesses was closed and the matter was listed for remaining evidence of the
defendant on 20th February, 2013. DW-3 and DW-4 were examined in chief,
however as the plaintiff and her counsel were not present, the Court
dismissed the suit in default for non-appearance.
2. The respondent/plaintiff filed an application under Order 9 Rule 9
CPC read with Order 7 Rule 14 and Section 151 CPC which came up for
consideration on 15th March, 2013. In the application the
respondent/plaintiff sought orders for recalling the case allowing the plaintiff
to cross-examine the defendant and for placing on record additional
documents. However vide noting dated 8th July, 2013 in the application the
learned counsel noted in hand that he was pressing the application only
under Order 9 Rule 9 CPC and would file a separate application under Order
7 Rule 14 CPC, if the suit is allowed to be restored. It is thus apparent that
subject to restoration the respondent did not press the rest of the reliefs. On
8th August, 2013 the suit was restored to its original number and at the stage
at which it was pending on 20th February, 2013. Thereafter on 9th
September, 2013 two witnesses of the defendant i.e. DW-3 and 4 were cross-
examined. The respondent/plaintiff filed an application for permission to
cross-examine DW-1 on 27th September, 2013. Vide order dated 20th
November, 2014 the learned Trial Court allowed the application of the
plaintiff/respondent dated 27th September, 2013 granting him permission to
cross-examine DW-1 and DW-2.
3. Aggrieved by the order dated 20th November, 2014 the petitioner
prefers the present petition. The grievance of the petitioner is that the
application wherein the impugned order was passed was not maintainable as
the said relief had been withdrawn in the composite application filed by the
respondent/plaintiff under Order 9 Rule 9 CPC wherein while withdrawing
the other reliefs no right was reserved for filing any further application nor
the permission was sought.
4. As noted above though the application under Order 9 Rule 9 CPC was
a composite application, however the petitioner on 8 th July 2013 pressed the
said application only under Order 9 Rule 9 CPC and with regard to other
reliefs it was stated that he would file a separate application if the suit was
restored. Thus, it cannot be held that the prayer for recalling of the defence
witnesses for cross-examination had been disallowed earlier and the same
having attained finality, no permission to DW-1 and DW-2 for cross-
examination could be given.
5. The order dated 8th August, 2013 passed by the learned Trial Court
also notes that the application was treated only as an application under Order
9 Rule 9 CPC and the application was decided only on that count.
Consequently, I find no infirmity in the impugned order.
6. Petition and application are dismissed.
(MUKTA GUPTA)
JUDGE
MARCH 13, 2015
'ga'
