Delhi High Court
Kailash Aggarwal & Anr vs Chandan & Anr on 7 March, 2018
$~35
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 36/2018 & CM Nos. 8706-8707/2018
% Date of decision : 7th March, 2018
KAILASH AGGARWAL & ANR ..... Appellants
Through : Mr. Sachin Chopra and
Mr. Shubhnit Hans, Advs.
versus
CHANDAN & ANR ..... Respondents
Through : None
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
CM No.8707/2018 (exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
FAO(OS) 36/2018 & CM No. 8706/2018
1. This appeal emanates out of a suit for specific performance
being CS(OS) No. 1279/2010 Kailash Aggarwal & Anr. v. Chandan
Ramamurthi & Anr.
2. The appellant before us who is the plaintiff in the suit, has
assailed an order dated 11th January, 2018 to the extent that it records
the following :
"4. Future defaults of the plaintiffs in appearance
inspite of the matter being listed in the cause list
shall be treated as non-readiness and non-
willingness of the plaintiffs to perform the part of the
Agreement for specific performance of which this
suit is filed."
3. It is submitted by Mr. Sachin Chopra, learned counsel for the
appellant/plaintiff that despite the best efforts of the plaintiff, it is the
respondents/defendants who are not permitting the final adjudication
in the suit.
4. Our attention is drawn to an order dated 8th December, 2017
when the matter was listed pursuant to an order of the Court
Commissioner without notice to the parties and as a result of which
none of the parties were present or represented.
5. On the next date. i.e. 8th January, 2018, the matter was called
out for the first time beyond court hours and consequently stood
adjourned to 11th January, 2018.
6. It is the submission of Mr. Chopra, learned counsel for the
appellant that there has never been any default on the part of the
appellant and that in fact, it is the respondents/defendants who have
delayed adjudication and have remained absent from the proceedings
on almost 20 occasions whereas the appellant has not appeared on
hardly 7 occasions.
7. Learned counsel would contend that there was no default at all
attributable to the plaintiff for the proceedings in the past.
8. It is further submitted that on the 11th of January, 2018, despite
the observations of the learned Single Judge against the plaintiff, no
order has been made for any consequences to enure to the defendant(s)
for default(s) on their part.
9. So far as the submission regarding the consequences of a
default on the part of the plaintiff/appellant under the agreement to sell
is concerned, we do not find any illegality in the order which has been
recorded. The 'reference to future defaults' is clearly to any default
which may occur in the future.
10. It has also been submitted that the impugned order directs the
personal appearance of the appellants/plaintiffs inasmuch as it records
'defaults of the plaintiffs in appearance'.
So far as the reference to the appearance of the plaintiff in para
4 of the order dated 11th January, 2018 is concerned, the same has to
be read as referring to a stage in the suit when the appearance of the
plaintiffs is actually required for further proceedings, Say, for the
purposes of recording of their evidence. Otherwise, the appearance of
counsels/authorised representatives has to suffice. This has to be the
purport of the order. No interference on this ground is warranted.
11. However, there is substance in the appellant's grievance that the
learned Single Judge has not provided for the consequences of default
in all court proceedings on the part of the defendants. The learned
Single Judge may therefore also consider appropriate consequences
upon a default attributable to the defendant(s) and pass necessary
orders thereon as well.
This present appeal and application are disposed of in the above
terms.
ACTING CHIEF JUSTICE
MARCH 07, 2018/kr C.HARI SHANKAR, J
