Delhi High Court
Gopal Singh Hanot vs Vijay Isngh Hanot on 20 November, 2018
23
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2270/2013
GOPAL SINGH HANOT ..... Plaintiff
Through: Mr. Kamlesh Kumar Mishra, Advocate.
versus
VIJAY ISNGH HANOT ..... Defendant
Through: None.
% Date of Decision: 20th November, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
I.A. 15801/2018
1. Present application has been filed under Section 151 of Code of Civil
Procedure allegedly for restoration of the present suit on the ground as if it
had been dismissed on account of non-prosecution on 12th October, 2018.
2. Learned counsel for plaintiff-applicant states that on the first call the
main counsel was on his legs in another Court and at the pass over stage, the
main arguing counsel was engaged in final arguments of another case and
therefore, unfortunately, the matter was dismissed for non-prosecution. He
also states that petitioner is a poor person who appears through legal aid and
therefore, the case be restored to its original number.
3. A perusal of the paper book reveals that the consistent conduct of the
plaintiff has been to either press for stay of sale of suit property by the bank,
who is a secured creditor, or to obtain adjournments.
4. This Court had in fact dismissed the present suit on account of non-
prosecution on 11th May, 2018 and not on 12th October, 2018 as mentioned
in the present application.
5. The dismissal order was passed as the plaintiff had refused to argue
the case on three consecutive dates. The orders dated 29th November, 2017,
16th April, 2018 and 11th May, 2018 are reproduced hereinbelow:-
A. Order dated 29th November, 2017
"Mrs. Krishna, wife of the plaintiff, prays for an
adjournment on the ground that her counsel Mr. R.S. Rathi,
Advocate, is out of station.
In the interest of justice, adjourned to 16th April,
2018."
B. Order dated 16th April, 2018
"Today also, Ms. Krishna, wife of the plaintiff prays
for an adjournment on the ground that her counsel Mr. R.S.
Rathi is unavailable. Reluctantly, the matter is adjourned to
11th May, 2018.
It is made clear that no adjournment will be granted
on the next date of hearing."
C. Order dated 11th May, 2018
"Today also the plaintiff prays for an adjournment.
On the last date of hearing, it was made clear that no
adjournment would be granted today. Accordingly, the
prayer for adjournment is declined.
He, however, states that he is not willing to argue the
case.
Consequently, the present suit and pending
applications are dismissed on account of non-prosecution."
6. On 12th October, 2018, I.A. 8605/2018 under Order IX Rule 4 CPC
for restoration of the suit was dismissed on account of non-prosecution. In
fact, the said application was listed for the first time on 06 th July, 2018 when
this Court drew the attention of the legal aid counsel to the previous conduct
of the plaintiff. On 06th July, 2018, counsel for legal aid had taken time to
study the file.
7. It seems to this Court that the plaintiff wants to keep the suit pending
only to prevent the secured creditor-Bank from exercising its rights against
the suit property. With this intent the plaintiff does not mind the suit being
dismissed in default as his purpose is secured by keeping an application for
restoration and/or some other application pending.
8. Keeping in view the conduct of the plaintiff, the present application
for restoration of restoration application, is dismissed.
MANMOHAN, J
NOVEMBER 20, 2018
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