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HIGH COURT OF DELHI
JUDGMENT
10891/2023 JOGINDER CHADHA ..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. Bhupendra K. Singh, Ms. Ankita Baluni, Mr. Ashok K. Singh, Ms. Vinita Singh and Mr. Deepak Kumar, Advocates.
For the Respondents : Mr. Anil K. Bhasin, Advocate for R-1 to R-3.
1. Petitioner challenges the order dated 08.12.2022 in CS DJ 736/17 titled as “Joginder Chadha vs. Vishnu Kumar And Ors.” whereby the application seeking recall of the order dated 06.07.2022 whereby the right of the petitioner/ plaintiff was closed, was dismissed. [ The proceeding has been conducted through Hybrid mode ]
2. Learned counsel submits that the petitioner had specifically informed the learned Trial Court that on 06.07.2022, the petitioner was unwell and could not appear before the Court nor could the evidence be filed on his behalf.
3. Learned counsel submits that the learned Trial Court did not consider the medical prescription filed on record and had closed the right of the petitioner/ plaintiff to lead evidence on the basis that on previous occasions, the petitioner/ plaintiff had miserably failed to adhere to the timelines given by the learned Trial Court for filing of the evidence.
4. Learned counsel further submits that, no doubt the issues were framed in the month of November 2019, yet the first date which was fixed for recording of evidence of petitioner was on 28.05.2020, which fell during the period of pandemic and subsequently, right up till 28.02.2022, various waves of pandemic had occurred leaving no opportunity for the petitioner to file his evidence.
5. Learned counsel submits that petitioner had made a fervent request to the learned Trial Court to permit one chance to lead petitioner/ plaintiff’s evidence in support of his suit which was not considered.
6. Per contra, Mr. Bhasin, learned counsel appearing for the respondent Nos. 1 to 3 vehemently opposed the submissions made by learned counsel appearing for the petitioner and invited attention of this Court to various previous orders as well as pointed out to the conduct of the petitioner/ plaintiff.
7. Mr. Bhasin, learned counsel submitted that there are number of litigations pending between the parties and the petitioner/ plaintiff is a chronic litigant and does not deserve any kind of a leniency.
8. Mr. Bhasin, learned counsel submits that on 06.07.2022 when the counsel for the petitioner/ plaintiff had appeared, no reason for the absence of the petitioner/ plaintiff was at all given by the counsel and the only flimsy reason given was, that the direction for filing the evidence on record was not informed to him by his own client i.e., the petitioner/ plaintiff. Mr. Bhasin, learned counsel submits that in that context the learned Trial Court, was constrained to pass the impugned order dated 06.07.2022 closing the right to file the evidence on behalf of the petitioner/ plaintiff.
9. Learned counsel submits that it is only subsequently, while seeking recall of the order dated 06.07.2022 that the medical certificate of a Doctor allegedly certifying the illness of the petitioner from 04.07.2022 through till 06.07.2022 was filed on record. Mr. Bhasin submits that even if it is assumed that the illness was genuine, that would still not answer the lapse of not having filed the petitioner’s evidence from 17.02.2022 to 06.07.2022.
10. On the aforesaid submissions, learned counsel for the respondents submits that the petitioner deserves no leniency and the petition should be dismissed with heavy costs.
11. This Court has considered the rival submissions of the parties and perused the documents as also the impugned order.
12. The impugned order dated 06.07.2022, though, was passed on the basis that no explanation was tendered by the petitioner/ plaintiff from 17.02.2022 through till 06.07.2022, however, the period prior thereto was also taken into consideration to show the conduct of the petitioner/ plaintiff to deny him the entitlement to file his evidence.
13. This Court has noted that the Trial Court has primarily led itself to pass the impugned order on the basis also of the period which was covered by the pandemic period and which broadly fell within the parameters of the judgment passed by the Supreme Court in Suo Moto Writ Petition (C) No. 3/2020 “IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION” reported as (2020) 19 SCC 10, which gave an embargo or a protection to the litigants throughout the country at least till 28.02.2022.
14. The subsequent period was covered by the judgment of the Supreme Court in Prakash Corporates vs. Dee Vee Projects Limited reported as AIR (2022) 5 SCC 112 up till 31.05.2022.
15. Though, no doubt that the petitioner/ plaintiff had appeared either himself or through the counsel during the COVID period, through VC and at times physically too, however, in view of the embargo on limitation placed by the Supreme Court, the petitioner deserves leniency at least till 28.02.2022.
16. Having regard to the fact that the petitioner acted with laconic attitude between 28.02.2022 through till 06.07.2022, when the impugned order was passed, this Court is of the considered opinion that at least one opportunity to lead evidence ought to be provided to the petitioner/ plaintiff, subject, however, to compensatory costs.
17. In view of the aforesaid and keeping in view the negligence of the petitioner/ plaintiff, this Court directs as under:- (a) the petitioner is permitted to examine three witnesses in all including the summoned witnesses. (b) the learned Trial Court shall provide 3-4 specific dates for recording of evidence of the aforesaid three witnesses.
(c) no adjournment of any sort would at all be afforded to the petitioner/ plaintiff or his witnesses for extending the date of recording of the evidence.
(d) the aforesaid directions shall be subject to the convenience of the learned Trial Court. (e) the aforesaid directions are subject to the payment of Rs. 50,000/as compensatory costs by the petitioner/ plaintiff to the respondent/ defendant on or before 13.03.2023.
18. It is informed that the matter is listed for consideration before the learned Trial Court on 13.03.2023.
19. The petitioner/ plaintiff is directed to file the examination-in-chief by way of an affidavit of the witnesses before 13.03.2023 with an advance copy to the learned counsel appearing for the respondents/ defendants.
20. The Trial Court shall thereafter proceed in accordance with law and schedule the list of dates for the purposes of recording the evidence of the petitioner/ plaintiff’s witnesses.
21. The petition is disposed of in the above terms. The pending applications also stands disposed of.
22. Needless to direct that the observation made by the learned Trial Court in the impugned order of closing the evidence of the respondent/ defendant shall stand expunged and obviously an opportunity to lead evidence on behalf of the respondent/ defendant shall be accorded to him in accordance with law.
TUSHAR RAO GEDELA, J. MARCH 06, 2023