Delhi High Court
Ashok Kumar Oberoi vs Manjeet Singh (Deceased) Thr His ... on 29 August, 2017
$~8
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 167/2017 & CM Nos.20592-93/2017
% Date of decision : 29th August, 2017
ASHOK KUMAR OBEROI ..... Appellant
Through : Mr. P.S. Singh, Adv.
versus
MANJEET SINGH (DECEASED)
THR HIS LRS & ORS ..... Respondents
Through : Ms. Vinny Shangloo, Adv. for
R-2 along with
Mr. Harish Katyal.
Mr. H.D. Talwani, Adv. for Mr.
M.S. Saluja, Adv. for R-3.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. The appellant before us assails the order dated 20 th December,
2016 passed by the Joint Registrar (Judicial) in CS(OS)No.2602/2012
Ashok Kumar Oberai vs. Manjeet Singh & Ors. whereby the
evidence of the appellant/plaintiff has been closed.
2. The appellant also assails the order dated 13 th February, 2017
passed by the ld. Single Judge whereby the ld. Single Judge has noted
the fact that the appellant/plaintiff evidence was closed and that he has
not appealed against the order dated 20th December, 2016 and that the
said order has attained finality. The plaintiff's suit was directed to be
placed for final disposal on 30th May, 2017.
3. Given the nature of controversy, it is not necessary for us to go
into a detailed consideration of the factual matrix relating to the
litigation. Suffice it would be to say that the appellant herein filed the
suit bearing CS(OS)No.2602/2012 against Mr. Manjeet Singh who is
represented by his legal heirs in the present appeal. The appellant also
impleaded Mr. Harish Katyal, respondent no.2 herein contending that
there was a previous agreement to sell dated 21st December, 2009 for
specific performance of an agreement to sell dated 29 th December,
2010 (in respect of property bearing No.289, Ambika Co-operative
House Building Society, known as Ambika Vihar, New Delhi -
110087) with him which had been cancelled vide cancellation
agreement/memorandum of understanding dated 28th December, 2010.
Nainital Bank Limited was arrayed as defendant no.3 on the averment
in the plaint that defendant no.1 had secured financial facility from it
against the security of the property.
4. The defendants entered appearance and were contesting the suit.
5. After completion of the pleadings, the case was listed for
framing of issues before court on 15th January, 2016. On that date,
because of the inability of the parties to assist the court, it was
adjourned for the same purpose to 25th April, 2016, subject to both
plaintiff and defendant no.2 paying costs of Rs.10,000/- each, to be
deposited with the Delhi High Court Legal Services Authority within a
period of four weeks for having wasted judicial time and public
moneys towards listing the case.
6. On the pleadings of the parties, issues were framed on the 25th
of April 2016 and the court directed the parties to file their list of
witnesses within six weeks. The matter was posted for 22nd July, 2016
before the Joint Registrar for fixing the date of trial.
7. Despite the strict time schedule, no list of witnesses was filed
by either of the parties. In this background, on 22nd July, 2016, the
Joint Registrar granted two weeks further time to the parties to do so
and granted six weeks time to the plaintiff/appellant to file his
affidavits of evidence.
Even this order was not complied with.
8. On 5th October, 2016, the Joint Registrar (Judicial) noted that
despite 10 weeks having passed since the 22nd July of 2016, the
affidavits of evidence of the appellant/plaintiff had not been filed.
However, in the interest of justice, the appellant/plaintiff was given
one last opportunity to file the affidavit of evidence within four weeks.
It was also recorded that despite an order dated 9th October, 2015
whereby the impleadment of the legal heirs of defendant no.1 was
permitted, the amended memo of parties had not been filed and that
the order dated 15th January, 2016 imposing the costs remained
uncomplied with. A last opportunity to file the list of witnesses of the
appellant was afforded by this order.
9. Unfortunately, the appellant/plaintiff failed to comply with any
of these directions. It was exasperated by such negligent conduct of
the appellant/plaintiff that the Joint Registrar has recorded the order
dated 20th December, 2016 which has been impugned herein. It is to
be noted that on this date, neither was the appellant present in the
court nor he was represented by his counsel. In these circumstances,
on 20th December, 2016, the Joint Registrar noted that the
appellant/plaintiff was no longer interested in pursuing the matter and
consequently, closed the plaintiff's evidence. The matter was posted
for 13th February, 2017 before the court for directions.
10. On the next date of hearing, the appellant was represented by
his counsel before the court. The above dalliance and lack of interest
on the part of the appellant/plaintiff was recorded by the court on 13 th
February, 2017. The court also noted that the appellant had neither
filed the affidavit of evidence nor the appeal against the order dated
20th December, 2016, which order had consequently attained finality.
Inasmuch as adequate opportunities had been afforded to the
appellant/plaintiff, it was noted that the submission for grant of further
time to do the needful, could not be accepted. The suit was therefore,
posted for 30th May, 2017 for final disposal. We are informed that it is
pending at this stage even on date.
11. It appears that after passing of the order dated 13 th February,
2017, the appellant / plaintiff filed an application on 22nd March, 2017
which subsequently came to be registered as I.A.No.5782/2017 for
recalling of the order of the Joint Registrar (Judicial) dated 20th
December, 2016 and the order of the court dated 13 th February, 2017.
After its filing, the appellant kept this application under objections in
the Registry.
12. It is the submission of the appellant before us, by way of CM
No.20592/2017 filed in the present matter, that the appellant had left
for USA on 16th December, 2016 and returned only on 18th February,
2017, during which period the impugned orders were passed. The
appellant contends that upon return to India, he tried to contact his
previous counsel who did not take his call. Efforts to personally meet
the counsel on 27th February, 2017 were also unsuccessful. The
appellant also submits that the case file was returned to him only on
10th April, 2017, in a much disorganized manner. In this background,
after reconstruction of the case file and necessary preparation,
I.A.No.5782-83/2017 could be filed by him in CS(OS)No.2602/2012
after removing the objections only on 8th May, 2017. This application
was placed before the court on 15th May, 2017 seeking recall of the
orders dated 20th December, 2016 and 13th February, 2017.
The above factual narration regarding the appellant having gone
to USA, his return to India and the negligence of his counsel were
cited as the reason for delay.
13. The application i.e. I.A.No.5782-83/2017 was considered by the
court on 15th May, 2017 noting that the order of the Joint Registrar
closing the plaintiff's right to lead evidence had not been appealed
which has attained finality; that no purpose could be served by
recalling the order dated 23rd February, 2017 and 20th December, 2016
and applications were dismissed.
14. The appellant assails the order dated 20h December, 2016; 13th
February, 2017 and 15th May, 2017 by way of the present appeal on
the same factual background on which I.A.No.5782/2017 was pressed
before us.
15. We may note that in order to support that he was abroad, the
appellant/plaintiff places reliance on extract of his passport. Even if it
could be accepted that the appellant was abroad, there is not a whit of
an explanation as to what prevented the appellant from ensuring
effective steps to be taken in the suit which had been filed by him
from 25th of April 2016 when issues were framed and repeated
opportunity to file list of witnesses, its evidence and payment of costs
imposed in January, 2016 were given.
16. The above narration of orders of the court as well as the manner
in which I.A.Nos.5782-83/2017 was filed and kept under objection for
over three months would show that the appellant has acted with gross
negligence and is guilty of laches in the matter, which is without any
reasonable cogent and acceptable explanation. There is no
justification as to why the appellant herein, after filing the suit for
specific performance of an agreement relating to valuable property
and claiming payment of such heavy consideration, did not take
effective steps for prosecution of this case. The record of the case
shows that the appellant was given adequate opportunities to file his
list of witnesses and his evidence. The appellant till date even did not
deposit the paltry amount of Rs.10,000/-, the costs imposed upon him
as back as by the order dated 15th January, 2016.
We see no justification at all to accept this appeal.
17. We may note that even the present appeal has been filed only on
23rd May, 2017 which is more than 119 days beyond the statutory
period of limitation. The appeal against the order of the ld. Single
Judge can be filed only within 30 days of the passing of the order.
There is no reasonable explanation for the same.
18. The application and appeal are therefore, devoid of any merit
and are hereby dismissed.
The suit being CS(OS)No.2602/2012 be listed for final disposal
on 7th September, 2017.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
AUGUST 29, 2017
mk
