Delhi High Court
Kuber Nath Srivastava vs Preet Pal Singh on 1 February, 2018
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 01st February, 2018
+ CM(M) 479/2017
KUBER NATH SRIVASTAVA ..... Petitioner
Through: Mr. N.K. Kantawala and Mr.
Satyender, Advocates
versus
PREET PAL SINGH ..... Respondent
Through: Mr. Jagjit Singh, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. There can be no denial of the fact that the petitioner (and his
counsel) have been guilty of gross neglect. But, the question is should
he suffer being non-suited for reasons which are shown to be
attributable more to his counsel.
2. The petitioner had instituted the suit (suit no.149/2006) on
30.03.2005 against the respondent seeking recovery of Rs.1,05,080/-.
The suit was dismissed by the civil judge by judgment dated
04.11.2011. He filed regular civil appeal (RCA 26/2013) with some
delay. The said appeal was thrown out by the first appellate court as
time barred by order dated 08.01.2014. The petitioner approached this
court by invoking the revisional jurisdiction (CRP 41/2014) which
was allowed by a consent order dated 09.12.2014 setting aside the
order dismissing the appeal as barred by delay, restoring it to be heard
and disposed of on merits. By the said order, this Court fixed the date
(06.01.2015) for the parties to appear before the District & Sessions
Judge (West District), it being added that the District & Sessions
Judge would mark the first appeal for disposal to a competent court in
accordance with law, the rider being that the petitioner was to pay an
amount of Rs.15,000/- as costs within a period of four weeks.
3. The appeal was taken up by the District & Sessions Judge
(West) on 06.01.2015. She opted, in exercise of the discretion vested
in her, to keep the matter on her board instead of being allocated to
some other competent court as per the observations in the order of this
Court. There was no appearance on the part of the petitioner till 12.24
p.m. The District & Sessions Judge was unable to wait further as she
recorded that she would be on leave of absence in the post-lunch
session. She noted the submission of the counsel for the defendant
that costs had not been paid. Nonetheless she directed the matter to be
renotified on 09.01.2015.
4. On 09.01.2015, there was no appearance on behalf of the
petitioner and thus, the appeal was again dismissed and file was
consigned to the record room.
5. The explanation of the petitioner is that the counsel representing
him had noted wrong date (19.01.2015), copy of his diary (Annexure
P-6) having been submitted in support. On this ground, he moved an
application under Section 151 of the Code of Civil Procedure, 1908
(CPC) seeking restoration. The Additional District Judge by the
impugned order dated 12.01.2017 dismissed the said application
refusing to entertain the appeal any further.
6. In resisting the petition at hand, the counsel for the respondent
first referred to the dismissal as withdrawn by order dated 11.05.2016
of Civil Revision No.41/2014 of the petitioner. The said revision
petition statedly was filed by the petitioner seeking enlargement of
time for payment of costs. The said order would have no bearing
since the order under challenge is the one passed on the application for
restoration of the appeal, which was dismissed in default.
7. The counsel for the respondent then submitted that though the
costs were paid to the respondent on 16.12.2015, by way of an
application later moved on 12.02.2016, the said costs were sought to
be returned to the petitioner. If so, it only means that the respondent
had forfeited the costs which had been imposed by this court by order
dated 09.12.2014, particularly in view of the fact that the proceedings
recorded on 16.12.2015 clearly reflect that the respondent had
received the said amount of costs "without any reservation".
8. In the above facts and circumstances, the neglect is undoubtedly
of the petitioner but more on account of the conduct of his counsel. It
would not be fair to throw his appeal out on technical grounds.
9. Therefore, the petition is allowed. The first appeal dismissed in
default by the District & Sessions Judge (West) by order dated
09.01.2015 is restored on the file of District & Sessions Judge (West)
but subject to the petitioner depositing with District Legal Services
Authority costs in the sum of Rs.25,000/- within four weeks.
10. The parties are directed to appear before the District & Sessions
Judge (West) for further proceedings in accordance with law in the
said appeal on 12.03.2018. It shall be the responsibility of both sides
to remain present in person or through counsel well in time on the first
call of the matter. The petitioner as the appellant will be obliged to
place on record of the first appellate court, copy of the receipt
confirming the deposit of the costs. In case of default, the appeal
would stand dismissed for non-prosecution.
11. As a natural consequence to the above, the impugned order
dated 12.01.2017 is also vacated.
12. The petition is disposed of in above terms.
R.K.GAUBA, J.
FEBRUARY 01, 2018
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