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HIGH COURT OF DELHI
JUDGMENT
SURESH KUMAR LAHIRI ..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. Dalip Kr Santoshi and
Mr. Rakesh Kumar, Advocate.
For the Respondent : Mr. Gaurav Seth, Advocate.
1. The petitioner challenges the order dated 12.05.2022 passed in CS No. 385/2017 titled ‘Rakesh Kumar Sharma vs. Suresh Kumar Lahri’, whereby the learned Trial Court had dismissed the application under Order IX Rule 7 CPC, 1908 and simultaneously examined and discharged PW-1 and closed the evidence of respondent/plaintiff. [ The proceeding has been conducted through Hybrid mode ]
2. Mr. Dalip Kr Santoshi, learned counsel for the petitioner submits that it is settled law that despite passing of order proceeding the party ex parte, the party can participate in future proceedings from the day and the date when such party appears before the Court. On that basis Mr. Santoshi, learned counsel submits that the learned Trial Court ought to have atleast permitted the petitioner/defendant to conduct crossexamination of PW-1, who was present in person on 12.05.2022.
3. Per Contra, Mr. Gaurav Seth, learned counsel appearing for the respondent/plaintiff submits that though there is no quarrel on the proposition of law, however an application under Order IX Rule 7 CPC was infact filed and the learned Trial Court applied its mind correctly and refused setting aside the order proceeding the petitioner/defendant ex parte.
4. Learned counsel for the respondent further submits that by virtue thereof, the cross-examination and discharge of PW-1, was also in accordance with law.
5. This Court has considered the submissions made across the Bench as well as perused the impugned order.
6. It is clear from the perusal of the order that no counsel was representing the petitioner/defendant on 12.05.2022 when the application under Order IX Rule 7 CPC was dismissed and simultaneously PW-1 was examined and discharged.
7. The submissions made by Mr. Santoshi, learned counsel based on the judgment of the Hon’ble Supreme Court in Sangram Singh vs. Election Tribunal, Kotah, reported in AIR 1955 SC 425, is a settled law. However, it is apparent from the perusal of the impugned order that no counsel was present who would have conducted the crossexamination of PW-1, who was present for such purpose on that day.
8. Having not cross-examined despite that opportunity available to him in law, the petitioner/defendant cannot be heard to make a grouse of the manner in which the learned Trial Court proceeded.
9. However, this Court is of the considered opinion that since petitioner/defendant was present in person before the learned Trial Court on 12.05.2022, one opportunity ought to have been granted by the learned Trial Court to conduct cross-examination of PW-1.
10. It is informed that the suit is now pending adjudication before the learned Trial Court on 27.02.2023.
11. In view of the aforesaid, learned Trial Court shall permit petitioner/defendant to conduct cross-examination of PW-1 on 27.02.2023 and such other dates as deemed fit and appropriate in the facts of the case, subject however, to the petitioner/defendant paying a sum of Rs.15,000/- as cost to the respondent/plaintiff on or before 27.02.2023.
12. With the aforesaid directions, the petition stands disposed of.
13. Pending application, if any, also stands disposed of.
TUSHAR RAO GEDELA, J FEBRUARY 16, 2023