Delhi High Court
Jatinder Singh vs Mahant Ayudhya Dass & Anr. on 18 July, 2022
$~5 (Appellate)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 648/2022, CM APPL. 30134/2022 (stay) and CM
APPL. 30135/2022 (Exemption)
JATINDER SINGH ..... Petitioner
Through: Mr. Naginder Benipal, Mr.
Abhijeet Vikram Singh, Ms. Harithi
Kambiri, Mr. Ankit Siwach and Ms. Kavita,
Advs.
versus
MAHANT AYUDHYA DASS & ANR. ..... Respondents
Through: Mr. Kuljeet Rawal, Mr. Vikram
Alung and Mr. Aditya Joshi, Advs.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
% 18.07.2022
1. The impugned order, dated 1st June 2022, passed by the learned
Additional District Judge ("the learned ADJ") in Suit 12803/2016
(Mahant Ayudhya Dass & Anr. v. Pritam Singh & Ors), rejects an
application filed by the petitioner under Order IX Rule 7 of the Code
of Civil Procedure, 1908 (CPC), in the following terms:
"Suit No.12803/16
Mahant Ayudhya Dass & Anr. Vs. Pritam Singh & Ors.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:21.07.2022
16:59:34
01.06.2022
Present: Counsel Sh. Kuljeet Rawal for plaintiffs.
Counsel Ms. Harithi for all the defendants.
An application u/o 9 Rule 7 CPC is filed on behalf of
the defendants along-with copies of documents with list of
documents. Copies supplied.
Written arguments have been filed on behalf of the
plaintiffs.
Put up for orders on the application u/o 9 Rule 7 CPC
at 4 pm.
Sd.
At 4 pm.
Present: None.
Arguments were already heard on the application u/o 9
Rule 7 CPC.
It is submitted in the present application that the
absence of the defendants on the last date of hearing i.e.
13/05/2022 was neither intentional nor deliberate as the
counsel for the defendants was in personal difficulty and the
e-mail for the same requesting to appear through VC was
made on the officials mail ID of this court. However, due to
bad network, counsel for the defendants was not able to
connect after various attempts.
It is further submitted that the present application is
moved bonafide and it is prayed that the order dated
13/05/2022 whereby the right of the defendants to cross
examine and declaring the defendants as ex-parte be recalled.
Ld. Counsel for the plaintiffs has opposed the present
application and has submitted that the present application has
been moved with malafide intention just to delay the
proceedings of the case. It is further submitted that for the
cross examination, the physical appearance of the witness of
the defendants was necessary and the same was not possible
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:21.07.2022
16:59:34
through VC and even the defendants have not paid the cost.
Perusal of the record shows that on 05/03/2022 when
the case was fixed for DE, adjournment was sought by proxy
counsel for the defendants on the ground that the main
counsel was not present due to personal difficulty. Therefore,
adjournment was given subject to cost of Rs.1000/- but on the
next date on 26/03/2022 again adjournment was sought on
behalf of the defendants as the witness was stated to be not
well. Therefore, adjournment was given subject to further
cost of Rs.2,000/-.
On the next date of hearing i.e. 07/04/2022, affidavit
of the DW-1 was filed which was without attestation and on
the next date of hearing i.e. 22/04/2022 the defendants instead
of filing fresh affidavit of the DW-1 has filed the application
u/s 151 CPC for recalling the order dated 07/04/2022 closing
of the evidence of the DW-1. The said application was
disposed of by permitting the defendants to file fresh affidavit
subject to cost of Rs.7,000/- which also included the previous
cost and it was also noted that the evidence of the DW-1 was
never closed. It appears that the defendant instead of filing his
affidavit in evidence intentionally filed the above application
to delay the proceedings of the case.
On the next date of hearing i.e. 13/05/2022, the
defendants neither paid the costs nor appeared in the present
case. In the said order sheet, it was observed that the request
sent by the defendants to conduct the proceedings through e-
mail was rejected as the said request was not sent in advance
to the opposite party and the witness was also not present
physically in the court for the purpose of evidence. It was also
specifically observed that the case was old one and
considering the conduct of the defendants, no further
opportunity was granted to the defendants for leading
remaining DE.
In the present application also, no specific reason has
been given to show that the defendant was prevented by any
sufficient cause from appearing in the present case to lead
evidence. As already discussed above, the conduct of the
defendant shows that he is not interested in leading evidence
despite several opportunities granted for the same and rather
wants to delay the proceedings of the case. Hence, the present
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:21.07.2022
16:59:34
application is dismissed.
Put up for final arguments on 05/07/2022.
Sd."
2. Mr. Naginder Benipal, learned Counsel for the petitioner, does
not dispute any of the observations in the afore-extracted order. His
only submission is that the absence of attestation, on the affidavit of
DW-1, as originally filed, took place because when the application
was filed by the earlier counsel in 2019, there was a strike in the Trial
Court, as a result of which the affidavit could not be attested.
3. That does not, however, purge the conduct of the petitioner. A
reading of the afore-extracted order speaks for itself. The petitioner
has been repeatedly recalcitrant, first in filing the affidavit of DW-1,
thereafter in complying with the direction of the Court to pay costs,
thereafter in appearing before the Court and, finally, after the duly
attested affidavit of DW-1 was permitted to be taken on record,
making the witness available for recording of evidence.
4. No exception can be taken to the impugned order as would
merit interference by this Court under Article 227 of the Constitution
of India.
5. The petition is, accordingly, dismissed. Miscellaneous
applications also stand disposed of.
C.HARI SHANKAR, J
JULY 18, 2022/r.bararia
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:21.07.2022
16:59:34
