Delhi High Court
Sunil Kumar & Anr vs Harish Chander & Anr on 16 March, 2021
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 456/2018 & O.A. 48/2020
SUNIL KUMAR & ANR ..... Plaintiffs
Through Mr. Abhijat, Adv.
versus
HARISH CHANDER & ANR ..... Defendants
Through Ms. Malvika Raghvan, Adv.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
O R D E R (ORAL)
% 16.03.2021
O.A. 48/2020 (Chapter II Rule 5 of the Delhi High Court (Original
Side) Rules, 2018) in CS(OS) 456/2018
1. This is an appeal against an order dated 4th September, 2020
passed by the learned Joint Registrar (Judicial), which reads thus:
"Ld. Counsel for the plaintiff has vehemently argued that the
right of the defendants to file written statement may be closed
in terms of order dated 24.02.2020 as written statement has not
come on record within the time period as granted by the
Hon'ble Court and that he is ready to return the costs as paid to
him.
Record reveals that written statement of the defendants
has not come on record till date. It is noteworthy that Hon'ble
Court vide order dated 24.02.2020 had categorically directed
the defendants that all defects be removed and written
statement be placed on record on or before 02.03.2020. The
relevant portion of the order is being reproduced as under:
"9. Having regard to the aforesaid, I am of the view that the
interests of the parties can be balanced by allowing the
application subject to reasonable costs being paid by the
defendants. The defendants are therefore permitted to place
on record their written statement and to cure any remaining
defects by 02.03.2020 r subject to payment of costs of
Rs.50,000/-. Costs be paid to the plaintiffs through counsel.
The written statement shall be accompanied by an affidavit
of admission/denial of the plaintiff's documents."
In view of aforesaid, I am constrained to close the right
of the defendants to file vrntten statement In terms of order
dated 24.02.2020. Needless to say, costs as received by the
plaintiff shall be returned to the defendants.
List the matter before the Hon'ble Court on date fixed
i.e. 10.11.2020 for further directions."
2. The aforesaid order is, essentially, a fallout of an earlier order
dated 24th February, 2020 passed by this Court. Paras 8 and 9 of the
said order, which are self-speaking in nature, read thus:
"8. Keeping in mind the aforementioned facts and
circumstances, I am inclined to allow the defendants to
re-file the written statement after curing of all defects
but subject to payment of reasonable costs. It is stated
that the written statement, free of all defects, is ready for
filing. Despite the indulgence granted by the Division
Bench, the application was filed with an incorrect suit
number and not brought on record. Even on the merits
of the application, little is said to justify the long delay
in re-filing. However, the judgments of the Supreme
Court inter alia in Robin Thapa vs. Rohit Dora, (2019) 7
SCC 359, hold that disposal of a suit on merits is
generally preferable to adjudication of disputes in
default of either of the parties.
9. Having regard to the aforesaid, I am of the view that
the interests of the parties can be balanced by allowing
the application subject to reasonable costs being paid by
the defendants. The defendants are therefore permitted
to place on record their written statement and to cure
any remaining defects by 02.03.2020, subject to
payment of costs of Rs.50,000/-. Costs be paid to the
plaintiffs through counsel. The written statement shall
be accompanied by an affidavit of admission/denial of
the plaintiffs documents."
3. Ms. Malvika Raghvan, learned counsel appearing for the
defendants, submits that, after the passing of the order dated 24th
February, 2020, this Court went into lockdown in the wakeup of the
COVID pandemic and, therefore, her client could not get to know of
the listing of the matter before the Joint Registrar on 17th August, 2020
and later on, 4th September, 2020. A perusal of the orders dated 17th
August, 2020 and 4th September, 2020 does reveal that there was no
appearance on behalf of the defendants on either of the said dates.
4. Though Mr. Abhijat, learned counsel appearing for the
plaintiffs, emphatically asserts that, had the defendants exercised due
diligence, they would certainly have been able to be aware of the
listing of the matter, and that the plaintiffs were duly represented on
both the dates, I am inclined to hold that, as an adverse order has been
passed against the defendants, irrespective of the justification thereof,
the defendants ought to be allowed one opportunity to be heard by the
learned Joint Registrar, especially given the fact that the order was
passed at a time when the restricted protocols set up by this Court
were still functioning to an extent.
5. Without, therefore, expressing an opinion either on the merits of
the impugned order or the justification of the defendants in remaining
absent on 17th August, 2020 and 4th September, 2020, and with the
consent of learned counsel for the respondents in this appeal, the
learned Joint Registrar is directed to afford one opportunity of hearing
to the present appellant, who would appear before the learned Joint
Registrar on 23rd March, 2021. This Court is not expressing any
opinion on the merits of the impugned order dated 4th September, 2020
and the learned Joint Registrar would be at liberty either to reiterate or
modify the said order as she deems appropriate, after hearing both the
parties.
6. This appeal is disposed of in the aforesaid terms.
C. HARI SHANKAR, J.
MARCH 16, 2021
r.bararia
