Dr N L Vaish And Anr vs Virender Bansal And Ors
2017 Latest Caselaw 2341 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+                          FAO(OS) 80/2017
%                                   Date of decision : 11th May, 2017
      DR N L VAISH AND ANR                           ..... Appellant
                    Through:             Mr. K. Sunil, Adv. with
                                         Appellant no.1

                           versus

      VIRENDER BANSAL AND ORS           ..... Respondent
                   Through: Ms. Rachna Agrawal, Adv.
                            for R-1 & 2
                            Ms. Anjali Chopra, Adv. for
                            R-3
      CORAM:
      HON'BLE THE ACTING CHIEF JUSTICE
      HON'BLE MS. JUSTICE ANU MALHOTRA
                    JUDGMENT (ORAL)

GITA MITTAL, ACTING CHIEF JUSTICE

1. This appeal has been filed by the appellants assailing the order dated 6th February, 2017 passed in OA No. 15/2017 in CS(OS) 1215/2010, whereby the appellants' have challenge to the order dated 6th January, 2017 passed by the Joint Registrar in CS(OS) 1215/2010 was rejected.

2. The facts giving rise to the present appeal are within a narrow campus. The appellants before us are plaintiffs in CS(OS) No. 1215/2010 whereby the plaintiffs sought a decree of declaration and possession qua a property on the Alipur Road. The suit was at the stage of evidence before

the Joint Registrar when, the appellants filed IA No.2512/2014 under Order VII Rule XIV with Section 151 CPC praying for formal permission to bring on record documents which had been filed alongwith their affidavit by way of evidence. This application was allowed by an order dated 12th February, 2016 subject to payment of costs of `10,000/- to each of the defendants.

3. The case was then listed on 30th August, 2016 before the Joint Registrar for recording of evidence when previous costs had not been paid. No witness was produced and the plaintiffs' counsel informed the Joint Registrar that an application would be moved for waiver of costs. Without bringing any documents in support, a plea was set up that the prime reason for non-production of the plaintiff no.1 as witness was his advanced age and ill health. The Joint Registrar consequently imposed further costs of Rs.10,000/- each in favour of the defendants.

4. Thereafter IA No. 15180/2016 was filed praying for waiver of costs which came to be rejected by the Joint Registrar by an order dated 6th January, 2017 for the same reason that no proof of medical treatment of PW-1 beyond February, 2015 had been shown.

5. An appeal assailing the order of the Joint Registrar being OA No. 15/2017 was filed. This appeal as taken up on 6th February, 2017 and rejected by the impugned order dated 6th February, 2017 holding that the appellants had failed to

file any documents manifesting the continued illness of the witness beyond February, 2015.

6. Aggrieved thereby, the appellants have filed the present appeal challenging the order of the learned Single Judge dated 6th February, 2017.

7. In support of the appeal, it is contended by learned counsel for the appellant that the documents which were placed before the Joint Registrar show that the plaintiff no.1 had suffered a brain stroke and the supporting documents showed irreversible changes in the brain resulting in his being disabled from performing even normal functions. In this regard, the diagnosis effected on 29 th January, 2015 showing that the plaintiff no.1 had suffered from "right MCA term, infarct with type II Diabetes Mellitus with Hyper tension with coronary artery disease with Benign Prostrate Hyper trophy." This diagnosis is supported in the medical documents dated 27, 28 and 29th January, 2015 as well as the MRI and report dated 28th January, 2015. The report dated 28th January, 2015 given by the radiologist records the following diagnosis :

"There is well defined altered signal lesion measures approx 34x20 mm in size seen in the left fronto-parietal grey and white matter extending form periphery to the ventricular margin, shows hyperintense signal over T2/FLAIR and DW images with reduced ADC value shows hypointense signal over T1 with images. There is no T1

hyperintense/T2* GRE hypointense signals are seen : relatively recent onset non hemorrhagic infarct in left MCA territory. There are focal discrete T2/FLAIR hyperintensities seen in the right fronto- parietal subcortical white matter - ischemic lesions.

There are prominent Virchow Robin spaces seen in the basal ganglia capsular region. Mild Cerebral atrophic changes seen as dilated lateral ventricle and subarachnoid spaces. Cerebellum, brainstem and pituitary gland are normal. Third and fourth ventricles are normal in size, shape and position. No midline shift seen."

8. The appellant had placed material before this court which shows that as a result of the stroke, the plaintiff had suffered irreversible damage to his parietal and frontal lobes of the brain resulting in involvement of motor functions, problem solving, spontaneity, memory language, initiation, judgement, impulse control, sentiment and sexual behaviour. Amongst the several effects pointed out in the literature would be loss of memory and loss of ability of recall amongst others string of digits. The medical record placed before us relating to 27th January, 2015 shows that the doctor has noted "Altered semorium" and that the patient was talking irrelevant, sometimes confused.

9. It is the contention of the appellant that the effect of the stroke suffered by the plaintiff at the age of 80 is that his medical condition only worsens with passage of time and

there can be no complete recovery from the stroke suffered by the appellant. It is submitted that as such, the documents setting out the medical condition in 2015 were sufficient for the court to take a view with regard to the medical status of the appellant as on date.

10. We may note that in support of this submission, the appellant no.1 is present in court in a wheel chair.

11. We may note that Ms. Rachna Agrawal, learned counsel for the respondent nos. 1 and 2 and Ms. Anjali Chopra, learned counsel for the respondent no.3 submit that the appeal itself is not maintainable.

12. However, given the limited prayer made before us, which is for waiver of the costs imposed on the appellant no.1, and given the fact that the medical documents were on record before the Joint Registrar as well as the learned Single Judge, we had issued notice to the appellant no.1. It is trite that costs are imposed in order to compensate the other side for the loss which enures to the party in the litigation on account of negligence of the other side. In the present case, given the medical condition brought out by the medical documents of the appellant, it would appear that the appellant was prevented by sufficient cause from taking the steps as required by law.

In view thereof, the direction in the order dated 30th August, 2016; 12th February, 2016 and 6th February, 2017 to the extent that the appellants were directed to pay costs to

the other side are hereby set aside and quashed.

This appeal is allowed in the above terms.

ACTING CHIEF JUSTICE

ANU MALHOTRA, J MAY 11, 2017/kr