$~1 (2020)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: December 16, 2021
Pronounced on: January 03 , 2022
+ CS (OS) 441/2020
VIJAY KUMAR NAGPAL ..... Plaintiff
Through: Ms. Nandini Sahni, Advocate
Versus
PARVEEN KUMAR NAGPAL ..... Defendant
Through: Mr. Pradeep Kumar, Advocate
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
ORDER
I.A.15069/2021 (under Section 151 CPC)
1. Present application has been filed by the applicant/plaintiff under
Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as
'CPC') for recalling of order dated 28.10.2021 and consequently, to restore
the suit to its original number as well as to restore the interim order dated
21.12.2020 passed by this Court.
2. It is averred in the present application that the present suit came up for
hearing before this Court on 21.12.2020 and on the said date, summons were
issued to defendant and an interim order was passed directing the parties to
CS (OS) 441/2020 Page 1 of 8 maintain status-quo as to the title and possession of the suit property and the
matter was directed to be listed before learned Joint Registrar on 22.01.2021
for completion of pleadings and admission/denial of documents as well as
before Court on 12.04.2021. On 22.01.2021 and 06.04.2021, the matter was
listed before learned Joint Registrar which was attended to by the counsel
for the plaintiff. Thereafter, the matter was listed before this Court on
12.04.2021 and the same was adjourned to 09.07.2021. In the mean time,
counsel for the plaintiff had filed replication on 22.03.2021 vide filing
No.306172.
3. Learned counsel for plaintiff submitted that on 09.07.2021 this Court
was not functioning due to Covid-19 situation and the matter was adjourned
to 26.08.2021 by en bloc date. It is further submitted that the learned counsel
for plaintiff was under impression that on 26.08.2021, the present matter
shall be adjourned by en bloc date to 12.10.2021 and had noted the said date
in her court diary. However, the matter was taken up on 26.08.2021 through
video conferencing and the same was adjourned to 28.10.2021. In fact the
learned counsel for the plaintiff, on 12.04.2021, had orally informed this
Court that no separate rejoinder is being filed to the reply filed by the
defendant to I.A. No.12366/2020 and the replication filed by the plaintiff
CS (OS) 441/2020 Page 2 of 8 may be treated as rejoinder to the said reply as well. Thereafter, as per order
dated 26.08.2021, the matter was directed to be listed on 28.10.2021 by this
Court. However, as the counsel for the plaintiff had noted en bloc date
10.12.2021 given for all matters listed on 26.08.2021, therefore, she did not
appear in the matter on 28.10.2021 due to wrong noting of the date. Learned
counsel for the plaintiff further submitted that in fact, on the said date, i.e.
28.10.2021, she was appearing in District Court Gurugram, Haryana in
another matter and, therefore, she was held-up there in the said matter till
after-noon. True copies of the relevant pages of the court diary of the
counsel for the plaintiff as well as true copy of order dated 28.10.2021
passed by learned ADJ District Court Gurugram, Haryana have already been
filed before this Court.
4. Learned counsel for plaintiff further submitted that the valuable
interest of plaintiff in the suit property will suffer irreparable loss, in case
the order dated 28.10.2021 is not set-aside and the present suit is not
restored to its original number. As already stated above, the non-appearance
of learned counsel for the plaintiff on 26.08.2021 as well as on 28.10.2021
was due to bonafide mistake and the same was not intentional. Plaintiff
came to know about the dismissal of present suit from family members on
CS (OS) 441/2020 Page 3 of 8 11.11.2021 since the family members are living together in the suit property
and thereafter, the present application was filed by the plaintiff.
5. To strengthen her arguments, learned counsel for applicant/plaintiff
has relied upon the case of Nitish Arora vs. State of Delhi 2007 (141) DLT
21 and Gotham Entertainment Group LLC & Ors. Vs. Diamond Comics
Pvt. Ltd. 2009 SCC OnLine Del 4009. Hence, restoration of suit is prayed
for to advance the cause of justice.
6. On the other hand, learned counsel for non-applicant/defendant
submitted that the plaintiff has invoked the inherent jurisdiction of this Court
provided under Section 151 CPC for claiming the said relief, however, it is
well settled that where specific provision exists in CPC for a relief, the
inherent jurisdiction cannot be invoked. Accordingly, the application which
has been filed under Section 151 CPC for restoration of present suit is not
maintainable and the same is liable to be dismissed.
7. Learned counsel for defendant further submitted that even otherwise
and without prejudice to the above, no cause what to talk of sufficient cause
has been shown by the plaintiff for his non-appearance on 26.08.2021 as
well as on 28.10.2021 and for his non-prosecution of the case. Plaintiff has
taken the plea that on 09.07.2021, this Court was not functioning due to
CS (OS) 441/2020 Page 4 of 8 Covid-19 situation, which is factually incorrect. In fact a number of cases
were heard by this Court on that day. However in the present case, the
matter was adjourned to 26.08.2021. Further, the plaintiff has taken the plea
that the counsel for the plaintiff was under the impression that on
26.08.2021, the matter would be adjourned by en bloc date to 12.10.2021
which is absolutely a false and concocted story put forward by learned
counsel for plaintiff to mislead this Court. It is also submitted that no
affidavit has been filed by learned counsel for the plaintiff in this regard
along-with the application. Even otherwise also learned counsel for plaintiff
is a senior counsel practicing before this Court and is very much aware that
the present suit is of the year 2020 (being filed in December, 2020) and a
number of hearings had already taken place and the suit has not been
adjourned as per en bloc dates on any previous dates. Rather the matter was
heard through video conference on all the previous hearings.
8. Learned counsel for defendant further submitted that now a days,
even messages (SMS messages) regarding the listing of matters are being
sent by the Delhi High Court's concerned branches / listing Branch to the
concerned counsels who have filed the suits / petitions etc. Thus, it cannot
be believed by any stretch of imagination that the plaintiff was not aware of
CS (OS) 441/2020 Page 5 of 8 the listing of present suit on 26.08.2021 as well as on 28.10.2021. Further, it
has not been disputed by the plaintiff that on 09.07.2021, the matter was
adjourned to 26.08.2021. Thus, the plaintiff ought to have attended the
matter on the said date. The matter was shown in the cause list of
26.08.2021 and there were no remarks about any adjournment by en bloc
dates. Therefore, the entire story put forward by learned counsel for plaintiff
is false and concocted with aim to mislead this Court and to drag on the
litigation which is frivolous to cause harassment to the defendant.
9. To strengthen his arguments, learned counsel for defendant has relied
upon the case of Mahboob Ali vs. Suresh Kumar Dixit decided on
16.03.2015 by the High Court of Judicature at Allahabad, Lucknow Bench.
10. Heard learned counsel for parties and perused the judgments relied
upon.
11. Regarding the objection raised by the learned counsel for defendant
that the present application is filed under Section 151 CPC instead of under
Order IX of CPC. However, under Section 151 of CPC, this Court has
inherent power to consider an application wherein a wrong provision is
mentioned. It cannot be an obstacle for granting the relief as made out from
the contents of the application as held in Gotham Entertainment (supra).
CS (OS) 441/2020 Page 6 of 8
12. It is trite that quoting a wrong statutory provision does not create a bar
and stand in the way of considering the application, as held in Nitish Arora
(supra). Thus, on this aspect, this Court is not convinced by the contention
of learned counsel for defendant.
13. Undisputedly, the applicant/plaintiff filed the present suit for partition
in which he is claiming 60% share in the suit property and recovery of
Rs.86,50,000/- with interest thereon, which is subject matter of trial.
However, at this stage, the claim cannot be considered as false and based on
concocted story.
14. It is also not in dispute that interim order dated 21.12.2020 was passed
in favour of plaintiff, thus, no such plaintiff would like to face dismissal of
suit and interim order. During the present situation, matters are being
adjourned en bloc and some matters could not be taken up due to technical
glitch on the part of parties appearing through video conferencing.
15. The plaintiff was not represented on 26.08.2021 as well as on
28.10.2021, therefore, the present suit was dismissed in default. However,
on 28.10.2021, the learned counsel for plaintiff attended a case before
learned ADJ, District Court Gurugram, Haryana and copy of order passed in
the said case is attached with the present application, due to which learned
CS (OS) 441/2020 Page 7 of 8 counsel for plaintiff could not appear before this Court on 28.10.2021. In my
opinion, the non-appearance on behalf of plaintiff before this Court on the
said was not intentional but due to the reasons mentioned above.
16. In view of above and in the interest of justice, I hereby recall order
dated 28.10.2021 and consequently, direct the Registry to restore the present
suit and pending application, if any, to its original number and position
subject to deposit of a cost of Rs.15,000/- by plaintiff and out of which,
Rs.10,000/- shall be deposited in favour of defendant and Rs.5,000/- in
favour of Delhi High Court Legal Services Committee within two weeks and
receipts thereof be placed on record.
17. Consequent to above, interim order dated 21.12.2020 is also restored
and shall remain in force till further orders.
18. Accordingly, the application is allowed and disposed of.
CS (OS) 441/2020 & I.A. 12366/2020 (under Order XXXIX Rules 1 & 2 r/w Section 151 CPC)
19. List on 28.02.2022 for directions.
(SURESH KUMAR KAIT) JUDGE JANUARY 3, 2022 rk
CS (OS) 441/2020 Page 8 of 8
