New Delhi Municipal Council v. Prominent Hotels Ltd.

1. By this order, I propose to decide the abovementioned two petitions along with pending applications filed by the New Delhi Municipal Council. The first petition being CM(M)No.91/2013 is filed under Article 227 ofthe Constitution of India seeking a direction to quash and set-aside the order CM(M)Nos.91/2013 &102/2013 Page 1 of[6] 2013:DHC:7449 dated 6^' December, 2012 whereby the application filed by the respondent/plaintiffunder Order VI,Rule 17 CPC was allowed.

2. In the second petition being CM(M)No.102/2013, the petitioner is seeking a direction to quash and set-aside the second order passed by the learned trial Court on the same date, i.e. 6*^ December,2012 whereby the respondent's application under order XIII, Rule 4 CPC for exliibiting admitted evidence was also allowed. The respondent was allowed to call the witnessesfor the purpose ofputting the exliibits.

3. Learned counsel for the petitioner has referred the order dated L' December, 2009 passed by my esteemed brother Sh.Rajiv Sahai Endlaw,J.,particularly paras 14to 17 which read as under:-

CM(M)Nos.91/2013&102/2013 Page 2of[6] n ^4seven years have no bearing whatsoever to the disposal ofthe suit.

16. Accordingly, not only is this petition dismissed as being found to be baseless, dilatory and vexatious, direction is issued to the trial court to dispose ofthe suit on or before 31®^ January, 2010. The counsel for the petitioner/plaintiff states tliat several interim applications are pending.However,in view of the conduct aforesaid ofthe petitioner/plaintiff,I am not willing to enlarge the time for disposal ofthe suit on the aforesaid plea. Ifthe interim applications which are pending are asfrivolous as tlie application from which this petition has arisen, the trial court will do well to deal with the same expeditiously. The suitbe disposed ofby thattime.

17. It is further clarified that the order dated 10^^^ September, 2002 staying further proceedings against the petitioner under the Public Premises Act is vacated. The counsel for the petitioner/plaintiff at this stage states tliatthe time for disposal ofthe suit be extended till 28^^ February, 2010. Subject to the counsel for the petitioner/plaintiff fully cooperating with the trial court and not pressing frivolous applications, the time is so extended till 28^'^February,2010."

4. It is argued by the learned counsel for the petitioner that despite of order passed by this Court,one way or the other,the respondent is avoiding to address the final arguments in the matter. He submits that after passing of the said order,the respondent has again filed the application under Order VI, Rule 17 CPC for amendment ofthe plaint, the prayer ofwhich ought not to have been allowed,as the matter was listed for final arguments.

5. With regard to the second petition being CM(M)No.102/2013, the learned counselfor the petitioner has referred the order dated 6^^ May,2002 passed by the Division Bench of tliis Court. Counsel states that the CM(M)Nos.91/2013 &102/2013 Page3of[6] examination ofthe witnesses could not have been pennitted to be recorded in view ofthe statement made by the respondent before the Division Bench of this Court that the respondent would not lead any oral evidence. The order dated 6^ May,2002 that recorded the statement of the respondent, reads as under "Mr.V.P.Singh, Sr. counsel appearing on behalf of the appellant says that if the amended licence deeds of M/s Bharat Hotel Limited, Sunair Hotels Limited, C.J. International Hotels Limited and the Indian Hotels Company Limited are filed by the respondent then the appellant will notlead any oral evidence. Ms.Hima Kohli,learned counsel for the respondent says that amended licence deed of these four above mentioned hotels, if any, will be produced before the learned single Judge with a copy to the counsel for the appellant. With these observations appeal is dismissed."

6. From the said order, it is clear, that the petitioner was allowed to produce the amended licence deeds of the abovementioned four hotels before the learned Single Judge. Counsel for the petitioner states that his client has no objection if the abovementioned four deeds be exliibited in accordance with law and any other document pertaining to the petitioner, however,their effect and validity have to be considered at the time offinal hearing ofthe suit. Therefore,the appearance ofwitnesses is not necessary in view ofabove,otherwise despite oforders,die matter would get delayed further.

7. With regard to the application under Order VI, Rule 17 CPC which was allowed by the impugned order, Mr.Vasisht, learned counsel for the respondent states that while disposing ofCM(M)No.1392/2009 between the CM(M)Nos.91/2013 &102/2013 Page4of[6] same parties, certain directions were passed in the earlier application for amendment filed by the respondent who has no objection if the same directions be passed in the present case also while disposing ofthe CM(M) No.91/2013. With regard to CM(M) No.102/2013, the respondent agrees with the suggestion given by the learned counselfor the petitioner.

8. So, learned counsel for both parties are agreeable that the abovementioned two petitions be disposed of with consent order in the following manner

(i) The respondent is permitted to take the legal plea sought to be incorporated in the plaint at the time offinal arguments in the main suit which is ripe for arguments, by ignoring the impugned order. Learned counsel for the petitioner has raised no objection for the said clarification and also ifthe petitioner is not granted any opportunity to lead fiuther evidence in view of the said plea.

(ii) The petitioner is agreeable that no further evidence is required to be led in case,the said plea be considered atthe time offinal arguments.

(iii) With regard to the other case being CM(M)No.102/2013, the documents wliich are allowed to be produced by the order dated 6'^^ May,2002,the same be exliibited in accordance with law, along with any other document(s) pertaining to the petitioner. However, the validity of the said documents would be considered at tlie time offinal hearing ofthe suit. CM(M)Nos.91/2013&102/2013 Page5of[6] y%,[4]