Delhi High Court
Paritosh Chandiok vs Rajiv Arora on 4 May, 2023
Neutral Citation Number 2023:DHC:3149
$~69
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 04.05.2023
+ CM(M) 535/2023 & CM APPL. 15807/2023
PARITOSH CHANDIOK ..... Petitioner
versus
RAJIV ARORA ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Rishi Manchanda and Mr.
Siddharth Mullick, Advocates along
with Petitioner-in-person.
For the Respondent : Mr. S.B. Pandey, Advocate along with
Respondent-in-person.
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
1. Petitioner challenges the order dated 11.03.2020 passed in CS.
No. 8195/2016 titled as "Paritosh Chandiok vs. Rajiv Arora", whereby
the learned Trial Court had closed the right of the petitioner/ plaintiff to
lead evidence.
2. Mr. Rishi Manchanda, learned counsel appearing for the
petitioner/ plaintiff submits that 11.03.2020 was the first date for the
purposes of recording of evidence when the proxy counsel appearing for
Signature Not Verified
Digitally Signed
Signing Date:09.05.2023
17:30:37
Neutral Citation Number 2023:DHC:3149
the main counsel had sought a short adjournment.
3. The learned Trial Court granted time only uptil 02:00 PM to file
the evidence by way of an affidavit and the same not being filed, had
closed the right to lead evidence.
4. Mr. Manchanda, learned counsel submits that after the impugned
order was passed, the country was reeling under the COVID-19
epidemic and, therefore, at the first available opportunity on 10.02.2022,
an application seeking recall/ modification of the order dated 11.03.2020
was filed. By way of the impugned order, the said application was
dismissed.
5. Mr. Manchanda, learned counsel submits that the learned Trial
Court had passed the impugned order without even considering the
merits of the application and only on the assumption that the application
was hopelessly barred by law of limitation, that the same was dismissed.
6. Mr. Manchanda, learned counsel submits that the order sheets of
the learned Trial Court passed from 27.09.2019 till 15.03.2022 have
been annexed and the same would reflect that so far as the petitioner is
concerned, there is no deliberate delay in filing the application. On that
basis, learned counsel submits that the petitioner/ plaintiff be given one
opportunity to record plaintiff's evidence.
7. Per contra, learned counsel appearing for the respondent submits
by handing over the bench, a compilation of the order sheets passed by
the learned Trial Court, to submit that even during the COVID period,
the counsel for the plaintiff were appearing and, therefore, there was no
reason why an application seeking recall/ medication could not have
been filed during the interregnum.
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Signing Date:09.05.2023
17:30:37
Neutral Citation Number 2023:DHC:3149
8. Learned counsel also submits that there is no explanation as to
why on 11.03.2020, evidence of affidavit of the petitioner/ plaintiff was
not filed.
9. Learned counsel submits that there is no explanation, much less a
sufficient or a reasonable explanation, for granting indulgence to the
petitioner/ plaintiff and the impugned order as such is sustainable in law.
10. This Court has considered the submissions of the learned counsel
for the parties as also perused the order sheets as placed on record by the
petitioner as also handed over by the learned counsel for the respondent.
11. It is trite that the parties have a right of opportunity to lead
evidence in support of their case before the learned Trial Courts, which
is a right available to the parties, under law.
12. This Court has perused the order dated 11.03.2020 as also the
impugned order dated 07.03.2022. After having perused the aforesaid
two orders as also the compilation of orders placed on record from page
64 onwards, commencing from the order sheet dated 27.09.2019 when
the issues were framed, it comes to fore that for various reasons not
solely attributable to petitioner, the evidence could not be commenced.
That coupled with the fact that the Supreme Court in Suo Moto Writ
Petition (C) No. 3/2020 "IN RE: COGNIZANCE FOR
EXTENSION OF LIMITATION" had already granted amnesty to the
litigants from the rigors of the Limitation Act, insofar as pleadings,
evidences etc. were concerned for the period from 15.03.2020 to
28.02.2022. A further extension of 90 days was also granted.
13. Thus, even if there was a delay, the same would still not come in
the way of the learned Trial Court to consider the application on its own
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Neutral Citation Number 2023:DHC:3149
merits.
14. It is informed that the petitioner had already filed his evidence by
way of an affidavit, which is recorded in the order dated 10.02.2022.
The application which has been filed ought to have been considered on
its own merits and not dismissed on the issue of limitation, specially
keeping in mind the bar of limitation being suspended for the entire
period from March, 2020 through till February, 2022 by the Supreme
Court in the aforesaid judgment.
15. Having regard to the fact that the learned Trial Court had
dismissed the said application merely on delay, which was not available
to it, and in view of the aforesaid judgment of the Supreme Court, this
Court is of the considered opinion that the impugned order ought to be
set aside with a direction that the learned Trial Court re-hear the
application seeking recall/ modification of the order dated 11.03.2020 de
novo.
16. In view of the aforesaid, the petition is disposed of with no order
as to costs.
17. All rights and contentions of the parties are reserved.
TUSHAR RAO GEDELA, J.
MAY 04, 2023
nd
Signature Not Verified
Digitally Signed
Signing Date:09.05.2023
17:30:37
