Lilu Kumar vs Devyani Mungali & Ors
2018 Latest Caselaw 6673 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI
     %                      Date of decision: 12th November, 2018.


+     FAO(OS) 165/2018, CM Nos. 46745-46746/2018

      LILU KUMAR                                               ..... Appellant
                            Through:   Mr. Sudhir Nandrajog, Sr. Adv. with
                                       Ms. Mercy Hussain, Adv.

                   versus

      DEVYANI MUNGALI & ORS                               ..... Respondents
                 Through: None.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE V. KAMESWAR RAO

     V. KAMESWAR RAO, J. (ORAL)

CM. No. 46745/2018 (for exemption) Exemption allowed subject to all just exceptions. Application stands disposed of.

FAO(OS) 165/2018

1. The present appeal has been filed by the appellant

challenging the order dated 25th September, 2018 in IA No.

12903/2018 in CS(OS) No. 3646/2014 passed by the learned Single

Judge whereby the learned Single Judge has dismissed the said IA

seeking recall of order dated 17th October, 2016 whereby the

application being IA No. 8108/2016 for restoration of the Suit was

dismissed.

2. It is the submission of Mr. Sudhir Nandrajog, learned Sr.

Counsel appearing for the appellant that the learned Single Judge

has erred in ignoring the fact that the fault of a counsel / Advocate

who has been assigned to prosecute the claim of the appellant

cannot be directly or indirectly be assigned to her / her son.

According to him, the appellant was totally kept in dark by her

counsel Mr. R.S. Sharma, whose Vakalatnama was on record and he

intentionally, deliberately and miserably failed to prosecute the IA

8108/2016 and did not even communicate to the appellant the status

and fate of the said IA. He submits that the learned Single Judge

has also not followed the correct procedure while dealing with IA

12903/2018 that the said IA had to be dealt with and decided and

then only in the event the occasion so arose, the reply to the

restoration application could have been perused and relied upon by

the learned Single Judge. In other words, it is his submission that

the there was no occasion for the learned Single Judge to consider

the reply of the contesting respondents to the restoration application

bearing IA. No. 8108/2016 without being restored.

3. It is his submission that even the reply to the restoration

application being IA. No. 8108/2016 contains wrong facts given by

the present respondent nos. 3 and 4, which were not even part of

their written statement in the main suit and if the same had to be

relied upon, the appellant must have been given an opportunity to

rebut the same. The said opportunity could not have been availed of

by the appellant because the restoration application was dismissed

in default before it could be decided. So, there was no occasion for

the appellant to place her rejoinder. He submits that even the

finding of the learned Single Judge that the appellant was getting

proper legal advice regarding litigation from her son at home is not

correct. According to him, even though the appellant's son is an

Advocate by profession, he is not the legal advisor to the appellant.

He was not the counsel for the appellant in the suit in question, from

which the present appeal arises. The appellant has her own lawyer,

from whom she is seeking advice. That apart, it is his submission

that the learned Single Judge has wrongly relied upon earlier

litigations claimed and alleged by the respondent nos. 3 and 4, in

which admittedly, the present appellant was never a party. Hence,

the orders passed in the same and / or, the fate of the same is neither

against the appellant nor binding on her. Even the finding that the

said litigations have been engineered by the appellant and her son is

without any basis. In the last, he submits that the learned Single

Judge did not consider the conduct of the erstwhile lawyer Mr. R.S.

Sharma, who was not justified in not prosecuting the main claim of

the appellant in CS(OS) 3546/2016 and also IA 8108/2016 and

keeping the appellant in dark. He also challenges the cost that has

been imposed by the learned Single vide the impugned order.

4. Having considered the submissions made by Mr. Nandrajog,

we note that learned Single Judge in Para 3 has noted that

Mr. Mohit Kumar, son of the appellant, who is a lawyer had

appeared for the appellant on the first date in the Suit and sought an

adjournment. She also noted that the adjournments have been

sought on various dates. It was only after noting that on 17th May,

2016, when none appeared for the plaintiff, that on the next date of

hearing, i.e., on 25th May, 2016, the Suit was dismissed in default.

The IA 8108/2016 seeking restoration of the Suit, was listed before

the court on 17th October, 2016, when none appeared for the

plaintiff, the learned Single Judge dismissed the said application

also.

5. There is a finding of fact of the learned Single Judge about

the number of litigations initiated by the defendant no.2. Even

though, Mr. Nandrajog has contested the litigations alleged to have

been filed by the appellant / defendant no.2 but we note, the learned

Single Judge in the impugned order observed that when learned Sr.

Counsel for the defendants pointed out the litigations to the court,

the plaintiff did not dispute the fact that the same were filed and the

orders as contained therein were in fact passed. Learned Single

Judge also observed that even Mr. Shrey Chathly, Adv. who was

retained by the appellant for inspecting the case file and to ascertain

the status after the dismissal of IA had appeared for Mr. R.S.

Sharma, Adv. on 30th May, 2015. In other words, the impression

that was sought to be given that Mr. Chathly has been engaged for

the purpose of filing an application for recall was a false plea.

6. During the course of his submissions Mr. Nandrajog had put

the blame on the counsel Mr. R.S. Sharma. We say nothing on that.

In substance, the learned Single Judge has primarily rejected the

application by highlighting the conduct of the plaintiff / defendant

no.2 and his counsel for not prosecuting the Suit with alacrity and

an attempt was being made to drag the litigation which led to the

dismissal of the Suit initially for non-prosecution and thereafter the

application for restoration of the Suit. In totality of facts, we are of

the view that the learned Single Judge is justified in rejecting the

application being IA 12903/2018 for recall of order dated 17th

October, 2016 whereby the application being IA 8108/2016 for

restoration of suit was dismissed.

The appeal is dismissed.

CM. No. 46746/2018 (for Stay) Dismissed as infructuous.

V. KAMESWAR RAO, J

CHIEF JUSTICE

NOVEMBER 12, 2018/jg