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HIGH COURT OF DELHI
FAO(OS) 358/2013, C.M. APPL.12045/2013 &12046/2013
NADEEM MAJID OOMERBHOY Appellant
Through : Sh. Sudhir Nandrajog, Sr. Advocate with Sh. Vila-am Mehta and Sh. Cauvery
Penandiker, Advocates.
HIGH COURT OF DELHI
FAO(OS) 358/2013, C.M. APPL.12045/2013 &12046/2013
NADEEM MAJID OOMERBHOY Appellant
Through : Sh. Sudhir Nandrajog, Sr. Advocate with Sh. Vila-am Mehta and Sh. Cauvery
Penandiker, Advocates.
VERSUS
GAIJTAM TANK &ORS Respondents
Through : Sh. Sagar Chandra and Ms. Ishani Chandra, Advocates, for Resp. No.4.
Through : Sh. Sagar Chandra and Ms. Ishani Chandra, Advocates, for Resp. No.4.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
• HON'BLE MR. JUSTICE NAJMI WAZIRI
07.08.2013 Issue notice. Sh. Sudeep Chatteijee, Advocate accepts notice on behalf,ofRespondent Nos. 1and 2, and Sh. Sagar Chandra, Advocate accepts notice on behalf ofRespondent No.4.
The appellant is aggrieved by the order of the learned Single
Judge to the limited extent that even while permitting his request for transposition of the plaintiff, the impugned order declined the liberty to lead evidence in the suit. Learned senior counsel for the appellant urged that the reasoning of the learned Single Judge in this regard is at variance with the rationale which persuaded him to allow the application for transposition. Learned counsel relied upon the orders ofthe Bombay High Court which were taken note ofby the learned
Single Judge while allowing the application for transposition. Itwas
2013:DHC:7283-DB submitted that the conduct of the suit was irregular and had led to its dismissal for non-prosecution earlier. In regard to these circumstances, argued learned counsel, interest ofjustice requires that at least the plaintiff should be permitted to examine himself in the suit. The appellant also relied upon provisions of Order XVI Rule lA
CPC, 1908. Learned counsel for Respondent No.l stated that the suit had not been conducted properly which led to the dismissal and that permitting the transposed plaintiff to lead evidence will only prolong the proceedings.
This Court has considered the submissions. It is evident from the reading of the impugned order that the learned Single Judge was impressed by the fact that the Bombay High Court took note of the conduct of the Court Receiver who had been appointed for instituting and prosecuting the proceedings. The said Court Receiver did not perform his job, a fact duly taken note of by the Bombay High Court in its order dated 15.05.2013. Having accepted this fact and permitting transposition of the LR of the then third respondent as plaintiff in this case, the learned Single Judge, in this Court's opinion, should not have declined the reasonable request of the transposed plaintiff to examine himself In these circumstances, the transposed plaintiff shall be permitted to examine himself in support of the suit.
It is clarified that no other part of the impugned order is being interfered with; except the plaintiff and the official witness, who may be summoned, no other witness on his behalf will be henceforth permitted to participate in the trial as a witness. In the circumstances of the case, the plaintiff shall bear the costs of the proceedings
-3 quantified at ^20,000/- to be paid to the first respondent. The appeal is allowed in the above terms.
Order dasti.
S. RAVINDRA BHAT, J AUGUST 07, 2013 -- -nWAZIRI,J
'ajk'
• HON'BLE MR. JUSTICE NAJMI WAZIRI
07.08.2013 Issue notice. Sh. Sudeep Chatteijee, Advocate accepts notice on behalf,ofRespondent Nos. 1and 2, and Sh. Sagar Chandra, Advocate accepts notice on behalf ofRespondent No.4.
The appellant is aggrieved by the order of the learned Single
Judge to the limited extent that even while permitting his request for transposition of the plaintiff, the impugned order declined the liberty to lead evidence in the suit. Learned senior counsel for the appellant urged that the reasoning of the learned Single Judge in this regard is at variance with the rationale which persuaded him to allow the application for transposition. Learned counsel relied upon the orders ofthe Bombay High Court which were taken note ofby the learned
Single Judge while allowing the application for transposition. Itwas
2013:DHC:7283-DB submitted that the conduct of the suit was irregular and had led to its dismissal for non-prosecution earlier. In regard to these circumstances, argued learned counsel, interest ofjustice requires that at least the plaintiff should be permitted to examine himself in the suit. The appellant also relied upon provisions of Order XVI Rule lA
CPC, 1908. Learned counsel for Respondent No.l stated that the suit had not been conducted properly which led to the dismissal and that permitting the transposed plaintiff to lead evidence will only prolong the proceedings.
This Court has considered the submissions. It is evident from the reading of the impugned order that the learned Single Judge was impressed by the fact that the Bombay High Court took note of the conduct of the Court Receiver who had been appointed for instituting and prosecuting the proceedings. The said Court Receiver did not perform his job, a fact duly taken note of by the Bombay High Court in its order dated 15.05.2013. Having accepted this fact and permitting transposition of the LR of the then third respondent as plaintiff in this case, the learned Single Judge, in this Court's opinion, should not have declined the reasonable request of the transposed plaintiff to examine himself In these circumstances, the transposed plaintiff shall be permitted to examine himself in support of the suit.
It is clarified that no other part of the impugned order is being interfered with; except the plaintiff and the official witness, who may be summoned, no other witness on his behalf will be henceforth permitted to participate in the trial as a witness. In the circumstances of the case, the plaintiff shall bear the costs of the proceedings
-3 quantified at ^20,000/- to be paid to the first respondent. The appeal is allowed in the above terms.
Order dasti.
S. RAVINDRA BHAT, J AUGUST 07, 2013 -- -nWAZIRI,J
'ajk'
JUDGMENT