Delhi High Court
Nitin Jain vs Pallavi Jain on 12 September, 2017
$~57
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.996/2017 & CM No.33191/2017 (for stay).
NITIN JAIN ..... Petitioner
Through: Mr. Sarfaraz Khan, Adv.
Versus
PALLAVI JAIN ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 12.09.2017
CM No.33192/2017 and CM No.33193/2017 (both for exemption).
1. Allowed, subject to just exceptions.
2. The application stands disposed of.
CM(M) No.996/2017 & CM No.33191/2017 (for stay).
3. This petition under Article 227 of the Constitution of India impugns
the order (dated 5th August, 2017 in GP No.587224/16 of the Court of
Principal Judge, Family Court, Central District, Tis Hazari Courts, Delhi)
framing issues in the case and posting the matter for evidence of the
respondent (petitioner in the guardianship case) on 1st and 2nd February,
2018.
4. On a reading of the petition it could not be understood as to what is
the challenge to the order framing the issues.
5. The counsel for the petitioner has however drawn attention to page 98
of the paper book, being the copy of the order dated 18 th November, 2016 in
the guardianship case from which this petition arises and as under:-
"GP No.1658724/16
Pallavi Jain Vs. Nitin Jain
18.11.2016
Present:- None.
Applicant was not present on last date also.
Application is, accordingly, dismissed in default of
appearance and non-prosecution. Application file be consigned
to record room.
Principal Judge, Family Court,
Central District, THC, Delhi / 18.11.2016"
6. The counsel for the petitioner has argued that though the guardianship
case so stood dismissed in default of appearance of the respondent herein
but, without restoring the same, issues were framed vide impugned order
dated 5th August, 2017.
7. Finding the order dated 18th November, 2016 to be referring to an
application and not to a petition or a case as is ordinarily done in the case of
dismissal of a petition or a case in default of appearance/non-prosecution and
otherwise finding it incongruous that the Family Court would frame issues in
a suit dismissed in default for non-prosecution, the counsel for the petitioner
has been asked to show the orders in the case of prior to 18 th November,
2016.
8. The counsel for the petitioner first contended that 18th November,
2016 was the first date in the case and there was no earlier date. However
subsequently, on being prodded further, he has himself drawn attention to
page 97, being copy of the order dated 5 th September, 2016 in the proceeding
being GP No.58724/16 (in which issues were also framed on 5 th August,
2017), posting the matter to 23rd February, 2017.
9. The same shows the falsity of the argument sought to be raised before
this Court. In fact the counsel for the petitioner during the course of hearing
has also drawn attention to page 100 being the copy of order dated 29 th June,
2017 in GP No.58724/16, when the counsel for the petitioner raised the same
argument before the Family Court and the Family Court clarified that on 9th
January, 2017 (sic for 18th November, 2016) it was only an application
which was dismissed in default. In fact from the number GP No.1658724/16
in the order dated 18th November, 2016 also it is clear that what was
dismissed on 18th November, 2016 was either a different case than in which
orders dated 5th September, 2016, 29th June, 2017 and 5th August, 2017 supra
were made or an application therein.
10. The counsel has not only thought of drafting a petition with false
averments but also of vehemently pursuing the same. In fact, once the matter
had on 5th September, 2016 been adjourned to 23rd February, 2017, the
question of the same being dismissed in default on 18 th November, 2016 did
not arise.
11. The present is a classic case within the parameters drawn by the
Supreme Court recently in Dnyandeo Sabaji Naik Vs. Pradnya Prakash
Khadekar (2017) 5 SCC 496 of a practice having developed of the litigants
totally abusing the process of the Court, filing frivolous and groundless
cases/petitions and the counsels aiding and abetting the same and Supreme
Court has held that such situations have to be dealt with severity to prevent
such happenings in future. It was held that if the same were tolerated, the
Courts will be choked and groundless and frivolous litigation will consume
time of and clog the Court infrastructure leaving no time for genuine
litigants.
12. Upon the counsel for the petitioner still continuing to argue, I have
asked him, whether he personally as a counsel is willing to take
responsibility for what he has argued.
13. The counsel then states that he is a "briefed counsel", only to argue
and does not know about the case. However there is no briefing Advocate
along with him.
14. The counsel then seeks adjournment.
15. Upon it being put to him that the same will be subject to costs, Mr.
Sarfaraz Khan, Advocate states that the petitioner is present and he
withdraws the petition.
16. At this stage, the counsel himself seeks to withdraw the petition.
17. The petition is dismissed as withdrawn but subject to the petitioner
depositing costs of Rs.25,000/- with the Delhi High Court Bar Association
Lawyers‟ Social Security and Welfare Fund, New Delhi.
18. List on 14th September, 2017 for showing proof of payment of costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 12, 2017
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