Delhi High Court
Manish Sharma & Anr. vs Smt Urmila Arora on 27 July, 2020
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27.07.2020
+ CM(M) 391/2020
MANISH SHARMA & ANR. .... Petitioners
versus
SMT URMILA ARORA ..... Respondent
Advocates who appeared in this case:
For the petitioners: Mr. Manish Sharma, Advocate.
For the Respondent: Mr. Gaurang Bindra, Advocate.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM APPL.16419/2020 (exemption from filing certified copy) & CM
APPL.16420/2020 (exemption from filing attested copy of affidavit)
Exemptions are allowed subject to all just exceptions. The duly
attested copy of affidavits shall be filed within one week of the resumption
of the regular functioning of the Court.
CM(M) 391/2020 & CM APPL.16418/2020 (stay)
1. The hearing was conducted through video conferencing.
2. Petitioners impugn order dated 11.02.2020, whereby, Respondent's
application under Section 5 of the limitation Act, 1963 seeking condonation
of delay of 29 days in moving an application under Order 9 Rule 13 CPC
Digitally Signed By:KUNAL
MAGGU
Signing Date:27.07.2020 17:30:40
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
was allowed. Petitioners also impugn order dated 21.07.2020, whereby,
application of the petitioner for dismissal of the petition under Order 9 Rule
13 CPC for failure to deposit costs has been dismissed.
3. Learned counsel for the petitioners submits that the petitioners had
filed the subject Suit for recovery and since the respondent defendant did
not appear in the suit, she were proceeded ex-parte and an ex-parte decree
was passed.
4. It is contended that no reason was given in the application under
Order 9 Rule 13 CPC as to why the defendant did not appear in the Suit and
the Court, by its order dated 11.02.2020, though had noticed that no
satisfactory explanation was given yet the delay in filing the application
under Order 9 Rule 13 has been condoned subject to payment of costs.
5. Learned counsel for the petitioners further submits that even the
costs was not paid on time and thereafter when the petitioners moved the
subject application seeking dismissal of the application under Order 9 Rule
13 due to non-payment of costs, said application has been dismissed,
however by imposing additional costs on the Respondents of Rs. 4,000/-
6. It may be noticed that the Application under Order 9 Rule 13 CPC
filed by the respondent contends that the respondent is not residing at the
address mentioned in the Memo of Parties of the Suit and had since shifted
from the said address and is living with her daughter and further that she
was not aware of the service by way of publication and no efforts were
made by the petitioners to trace out the address of the respondent.
Digitally Signed By:KUNAL
MAGGU
Signing Date:27.07.2020 17:30:40
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
7. With regard to non-payment of the costs within time, it is contended
that by order dated 11.02.2020, the case was listed for 13.04.2020 and
respondents intended to make the payment of costs on the said date,
however, in the month of March lockdown happened and because of the
lockdown situation, respondent could not make arrangement of funds to
pay the costs.
8. Trial Court has noticed that the issue is procedural and a good case
on merit should not fail merely on the ground of limitation. The Court has
taken a lenient view and not dismissed the application seeking condonation
of delay of 29 days in filing the application under Oder 9 Rule 13 CPC
merely on a technical ground.
9. The order passed by the Trial Court is a discretionary order and
normally where discretion has been exercised in favour of doing substantial
justice, the High Court would be reluctant to interfere in the same in
exercise of powers under Article 227 of the Constitution of India.
10. Respondent in her application under Order 9 Rule 13 had given
several reasons for not appearing in the suit.
11. Without commenting on the merits of the application under Order 9
Rule 13, since the same is still pending, it is observed that Trial Court has
exercised discretion by citing cogent reasons and accordingly does not
warrant any interference.
12. With regard to delay in payment of costs, once again an explanation
has been rendered by the respondent that she was expecting to pay the costs
Digitally Signed By:KUNAL
MAGGU
Signing Date:27.07.2020 17:30:40
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
on the next date before the Trial Court and since the Courts stopped
functioning because of the COVID-19 pandemic, the cost was not paid.
13. Since both the orders are discretionary orders and the Trial Court has
exercised its discretion, keeping in view substantial justice in mind, in my
view, no interference is called for in the impugned orders dated 11.02.2020
and 21.07.2020.
14. The Petition is, accordingly, dismissed.
15. Petitioner is, however, directed to furnish the bank details of his
accounts to the counsel for the respondent within 2 days and the respondent
shall deposit the costs of Rs. 15,000/-, imposed by the impugned orders, in
the account of the petitioner within 5 days thereof.
16. Copy of the order be uploaded on the High Court website and be
also forwarded to learned counsels through email.
JULY 27, 2020 SANJEEV SACHDEVA, J
st
Digitally Signed By:KUNAL
MAGGU
Signing Date:27.07.2020 17:30:40
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
