Delhi High Court
Vijay Swaroop Lav vs Ms Nisha Rathi & Ors. on 4 July, 2022
$~3(Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 458/2022 & CM No. 23243/2022, CM No.23244/2022
VIJAY SWAROOP LAV ..... Petitioner
Through: Ms. Samvartika Pathak, Adv.
versus
MS NISHA RATHI & ORS. ..... Respondents
Through: Mr. Jai Kumar Sinha, Advocate
for Respondent
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
% 04.07.2022
1. This petition under Article 227 of the Constitution of India
assails an order dated 24th March, 2022 passed by the learned
Additional District Judge ("the learned ADJ") in CS 650/2017 (Nisha
Rathi v. Yashpal Panwanda) to the extent the order dismisses an
application filed by Defendant 3 under Order XII Rule 6 read with
Order VII Rule 11 read with Order I Rule 10 and Section 151 of the
Code of Civil Procedure, 1908 (CPC).
2. Though the impugned order states that the application appears
to have been filed by all the defendants in the suit, a reading of the
application reveals that it was essentially filed only by Defendant 3,
who is the petitioner before the present proceedings as well.
3. The reasoning of the learned ADJ as contained in the impugned
order dated 24th March, 2022, for dismissing the application is as
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:06.07.2022
11:33:06
under:
"As far as the later application is concerned, this is apparently
a very vague clandestine and wrongly drafted application on
its very face. Even title of this application gives an impression
that it has been filed on behalf of all the three defendants
whereas as a matter of fact, there is no appearance at all of the
defendant no. 2 either in person or through any Counsel or
otherwise. Accordingly, this application is being disposed of
as dismissed as, not maintainable being vague and unclear in
averments."
4. To my mind, it was not permissible for the learned ADJ to
dismiss the petitioner's application in such a fashion. It does not
appear, from a reading of the application of the petitioner, that it was
so vague or unclear that the Court was not in a position to pass any
orders thereon. Even if the Court were to feel that the application did
not contain requisite averments, as would enable it to be decided on
merits, the learned ADJ ought, at the very least, to have made this
point explicit while rejecting the application.
5. The impugned order is also inherently contradictory in terms, as
it dismisses the application as not maintainable being vague and
unclear in averments. Maintainability and clarity of averments in the
application are entirely two different concepts. An application which
may be unclear or wanting in requisite details, does not suffer from
maintainability on that ground alone.
6. It appears, therefore, that there has been no proper application
of mind by the learned ADJ while rejecting the application of
Defendant 3, i.e. the present petitioner.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:06.07.2022
11:33:06
7. Mr. Sinha, learned Counsel for Respondent 1, who is plaintiff in
the suit, submits on instructions that he has no objection if the
impugned order is set aside and the application of the petitioner is
remanded to the learned ADJ for reconsideration.
8. Accordingly, the impugned order is set aside. The learned ADJ
is directed to reconsider the application filed by the
petitioner/Defendant 3, which finds place at page 98 of the paper book
before this Court and to pass appropriate order thereon, keeping in
view the observations made hereinabove.
9. This Court refrains from entering any observations either on the
maintainability or the merits of the application. All issues would
remain open to be decided by the learned ADJ in accordance with law
and in due compliance with the principles of natural justice.
10. The petition is allowed to the aforesaid extent, with no orders as
to costs. Miscellaneous application also stand disposed of.
C.HARI SHANKAR, J
JULY 4, 2022
r.bararia
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:06.07.2022
11:33:06
