Delhi High Court
Smt.Laxmi Devi vs Sanjiv Kaushik & Anr. on 23 May, 2023
Neutral Citation Number 2023:DHC:3638
$~58
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 23.05.2023
+ CM(M) 876/2023
SMT.LAXMI DEVI ..... Petitioner
versus
SANJIV KAUSHIK & ANR. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Hem C. Vashisht and Ms. Kiran
Kumari, Advocates.
For the Respondents : None.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
CM APPL. 27684/2023 (for exemption)
1. Exemption is allowed, subject to all just exceptions.
2. The application stands disposed of.
CM(M) 876/2023 & CM APPL. 27683/2023 (for stay)
3. Petitioner challenges the order dated 23.03.2023 in MISC DJ
755/2022 titled as "Sanjiv Kaushik vs. Laxmi Devi" whereby an
application under Order IX Rule 9 of the CPC, 1908 seeking restoration
of the counter claims, which was dismissed for default on 13.10.2022,
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
11:58:08
Neutral Citation Number 2023:DHC:3638
was dismissed.
4. Learned counsel submits that the matter was last listed, before the
impugned order was passed, on 28.09.2022, when the son of the
petitioner had approached the learned Trial Court and was given to
understand that the matter was next listed on 24.11.2022.
5. Learned counsel submits that apparently, it was an error either of
the Court staff or possibly of the son of the petitioner, who noted the
next date of hearing as 24.11.2022 instead of 13.10.2022.
6. Learned counsel submits that it is only on 30.10.2022 when the
son of the petitioner met the respondent/ plaintiff, he was informed by
the respondent/ plaintiff that the matter was now fixed for evidence. On
that basis, learned counsel submits that the counsel for the petitioner had
inspected the Court file on 07.11.2022 when it was gathered from the
court record that the counter claim was dismissed in default on
13.10.2022.
7. Learned counsel submits that immediately thereafter the petitioner
filed the application under Order IX Rule 9 CPC, giving the reasons as
to on what grounds the petitioner did not appear, which led to the
impugned order being passed.
8. Learned counsel on query by this Court had produced the original
Court diary of the counsel to show that indeed the entry on 28.09.2022
of the case, on which the next date of the hearing was noted as
24.11.2022.
9. However, on a query, learned counsel further submits that the
diary and photocopy was not placed before the learned Trial Court along
with the application under Order IX Rule 9 of the CPC, 1908.
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
11:58:08
Neutral Citation Number 2023:DHC:3638
10. Since the learned Trial Court did not have the benefit of the
aforesaid documents, this Court is of the considered opinion that the
petitioner can be given an opportunity to place the same on record for
the consideration of the learned Trial Court in that regard.
11. The petition is disposed of with a direction to the petitioner to
place on record of the learned Trial Court, the copies of the relevant
pages of the court diary within two days from today.
12. It has been given to understand that the matter is listed before the
learned Trial Court on 07.06.2023.
13. The learned Trail Court is requested to first consider the
application under Order IX Rule 9 of the CPC along with the documents
now sought to be placed on record of the learned Trial Court and pass a
fresh order on that basis, after issuing notice to the respondent/ plaintiff.
14. The aforesaid petition along with pending applicaiton is disposed
of with no order as to costs.
TUSHAR RAO GEDELA, J.
MAY 23, 2023/nd
Signature Not Verified
Digitally Signed
Signing Date:25.05.2023
11:58:08
