Pawan Saraswat v. Munish Gupta & Ors.

1. This petitionfiled under Article227 of Constitutionof India impugns the order dated 22.03.2023 passed by the Additional Senior Civil Judge, Central District, Tis Hazari Courts, Delhi (‘Trial Court’) in civil suit NO. 3298/2017, titled as ‘Munish Gupta v. Pawan Sarawat and Ors.’, whereby theRespondent’sapplication dated 14.02.2022, filed under Order XVIII Rule 17 read with Section 114 and 151 of Code of Civil Procedure, 1908 (‘CPC’)and Section 5 of the Limitation Act, 1963, for recall the order dated 15.12.2021 was allowed.

1.1. The TrialCourtvideorder dated 15.12.2021 closed the Respondent i.e., plaintiff’s right to lead evidence.

1.2. The Petitionerherein is the defendant no.1, the Respondent No. 1 is the plaintiff and Respondent Nos. 2 to 4 are defendant nos. 2 to 4 respectively, in the civil suit. The suit has been filed seeking permanent, mandatoryinjunctionand damages with respectto first floor ofproperty NO. 1933 (Old No. 29/50 & 29/51), Aargraa fountain,Delhi-06 (‘suit property’).

2. Learned counselfor thePetitioner statesthatthe Trial Court failed to deal with thepreliminary objection raised by the defendant no.1, pointing out that theapplication filed for recalling of theorder dated 15.12.2021 was not supportedwith theaffidavitofthe plaintiff;and in fact, the affidavit has been sworn by his counsel, which is impermissible in law.

2.1. He states that in the facts of this case, the plaintiff has been grossly negligent in prosecuting his suit in as much as though the issues were framed on 09.07.2019, the plaintiff has till date not served his witness’s evidence affidavit on the Petitioner herein.

2.2. He states that thecallousnessof the plaintiff is also evident from the fact that the costsimposed on him vide impugned order dated 22.03.2023 havenot been tendered to the Petitioner till date. He states on this ground alone, the impugned order should be set aside.

3. This Court has considered the submissions of the counsel for the defendant and perused the record.

4. This Court finds merit in the submissions of the counsel for the Petitioner that the application dated 14.02.2022 filed under Order XVIII Rule 17 of CPC could not have been maintained in the absence of an affidavit of the plaintiff himself.

5. It is, in fact, alarming to note that the plaintiff, who’s right to lead evidence was closed on 15.12.2021 andthereafter, reopened vide impugned order dated 22.03.2023, has till date failed to either lead his witness evidence or pay the costs.

6. However, sincesubstantial time has elapsed since the passing of the impugned order,this Courtis not inclined to set aside the order as it would further delay trial.

7. However, the learned Trial Court is requested to exercise its jurisdiction under Order XVII CPC, in case the plaintiff fails to lead evidence on 19.12.2023 i.e., the next date of hearing already scheduled before the Trial Court.

8. The Trial Court is further requested to pass appropriate directions against the Respondent No.1 for non-compliance of the impugned order dated 22.03.2023.

9. In the facts of this case, considering that the Plaintiff has been negligent in pursuinghis suit, theTrial Courtis requested to bear this fact in mind duringfinaladjudication and more specifically, the claim of damages for the period of2019 to 2024 (pendente lite), considering the fact that the plaintiff has itself not prosecuted the suit.

10. The Trial Court is further requested to complete recording of the plaintiff’s evidencewithin a periodoftwo (2) months from 19.12.2023 i.e., thedatealready fixed beforethe Trial Court, failing which, the rights of the plaintiff to lead evidence shall stand closed.

11. The defendantis directed to e-mail a copy of this order to theplaintiff and the counsel for the plaintiff appearing before the Trial Court.