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HIGH COURT OF DELHI
JUDGMENT
MOHIT BHANOT ..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. Shiv Charan Garg, Mr. Imran Khan, Mr. Rohit Kumar and Ms. Jahanvi Garg, Advocates
For the Respondent : Mr. M.L. Khan, Advocate
[ The proceeding has been conducted through Hybrid mode ]
1. Exemption allowed subject to just exceptions. CM APPL. 34140/2022
2. The application stands disposed of.
3. The petitioner challenges the order dated 27.04.2022 passed in Civ DJ No. 12698/2016 titled Mohit Bhanot vs. Sudershan Kumar Bhanot & Anr whereby the application under Section 151 of CPC, 1908 seeking waiving or reducing cost imposed upon the plaintiff vide order dated 05.12.2019 to the extent of Rs.15,000/-, moved on behalf of the petitioner/plaintiff, was dismissed.
4. Mr. Shiv Charan Garg, learned counsel appearing for the petitioner/plaintiff submits that vide the order dated 05.12.2019, the learned Trial Court had permitted the petitioner/plaintiff to amend its list of witnesses subject to the payment of cost of Rs.15,000/- to the respondent/defendant. Mr. Garg, learned counsel submits that on 18.01.2020, an application seeking summoning of the witnesses as per the amended list of witnesses was filed, however, the same was kept for consideration on 21.03.2020.
5. Learned counsel submits that on 21.03.2020, the Central Government had declared the same as holiday on account of impending suspicion of spread of COVID-19 pandemic. Learned counsel submits that as such, the said application seeking summoning of witnesses was not heard.
6. Learned counsel submits that on 24.09.2021 a second application seeking summoning of witnesses was filed by petitioner/plaintiff, for abundant precaution. However, after certain period of time and before the next date of hearing, the physical hearing was closed in the wake of second wave of the COVID-19 pandemic and thus, the parties were relegated again to the Video Conferencing mode and the said application was not considered, once again.
7. Mr. Garg submits that finally on 27.04.2022, the learned Trial Court considered both the applications seeking summoning of witnesses and dismissed the same for having violated the directions passed in the order dated 05.12.2019.
8. Learned counsel submits that it was only on account of the intervening COVID pandemic that the applications were not considered and it was no fault of the petitioner/plaintiff due to which such consideration took considerable time.
9. Per Contra, Mr. M.L. Khan learned counsel for the respondent/defendant vehemently opposed the aforesaid submissions. Learned counsel submits that the permission to amend the list of witnesses was subject to payment of Rs.15,000/- as costs.
10. Learned counsel submits that the directions being subject to the payment of costs and costs not having paid, the directions automatically would be rendered otiose. Learned counsel also submits by referring to the conduct of the petitioner/plaintiff that the petitioner/plaintiff has delayed the matter and has caused harassment to the respondent/defendant.
11. This Court has considered the submissions made by learned counsel for the parties and has also considered the impugned order.
12. There is no doubt about the fact that the order dated 15.12.2019 was conditional and would be operative only upon the payment of costs of Rs.15,000/-, which was directed subject whereof the petitioner/plaintiff was permitted to file the amended list of witnesses. It was only if the said amended list of witnesses becoming valid in law, that the two summoning applications would be considered to be having any edifice to stand on.
13. However, this Court has also considered that the order dated 05.12.2019 also took into consideration that the matter was still at the stage of recording of the evidence of the petitioner/plaintiff and on that ground alone, the learned Trial Court had permitted that the amended list of witnesses be filed and taken on record, subject to the payment of Rs.15,000/- as costs. Consequent thereto, the application for summoning witnesses was also filed within a reasonable period, however, due to the intervening COVID-19 pandemic, the proceedings got disrupted.
14. The non-consideration of the application cannot be attributable to the petitioner/plaintiff alone and it is due to the intervening pandemic that the country itself was in disarray.
15. That apart, the Hon’ble Supreme Court in Suo Moto Writ Petition (C) No.3/2020 ‘In Re: Cognizance for Extension of Limitation’ had also considered the travails of the litigants and had granted amnesty in matters which were pending before various Courts in the Country.
16. Keeping the aforesaid in view as also the fact that by the order dated 05.12.2019, the learned Trial Court had permitted the amended list of witnesses to be filed and taken on record and keeping in mind the stage of the suit, this Court is of the considered opinion that one opportunity to examine the witnesses as per the amended list of witnesses can be granted.
17. Keeping in view the delay that has occurred and the inconvenience caused to the respondent/defendant coupled with the fact that the costs of Rs.15,000/- have not yet been paid from 05.12.2019, this Court is of the considered opinion that the respondent/defendant ought to be compensated. Apart from the costs of Rs.15,000/- which will have to be paid to respondent/defendant, the petitioner is mulcted with costs of Rs.35,000/- to be paid to the respondent/defendant within two weeks from today against a valid receipt. The receipt shall be filed before learned Trial Court under a proper index.
18. Mr. Garg has paid in Court a sum of Rs.15,000/- cash, which is accepted by Mr. Khan, learned counsel for the respondent/defendant.
19. With the aforesaid terms, the petition stands disposed of.
TUSHAR RAO GEDELA, J. MAY 16, 2023