Pranay Dubey v. Meena Kumari & Ors.

3 RespondentNo.l,MeenaKumri(sincedeceased),SaurabhAbhishek and Rajender Kumar, the respondent Nos. 2and 3before us, were defendants to thesuit.

4 By an interim order dated 24.08.2009 the respondents-defendants were restrainedfrom selling, alienating,transferring, tn>nsfernngorcreatmg anythird partyinterestinrespect oftheproperty.

5. Issues in the suit were framed on 20.04.2012 andthe ease was fixed for trial... «i»a b,». m «• "«• which reads:- ' ' "Reauest for adjoj^ni:a»^^ ^ Learned counsel '7,•'ikrrrasii'is:r-.sris learned counsel for P i^teyesterday in couldnot be movedas he got has opposed the the evening. Learned cornse f ^ j^^s drawn my adjournment. by my Uarmd ifSfSfeST: learnedpredecessor on the last date. Ihave considered the submissions made by learned counselfor parties. Sufficient opportunities have been granted to ^ plainS^m "ojustificationfor notsun^momng Page[2] of 8 the official witnesses for today. Plaintiffs could have also scheduled their visit to Uttrakhand in a manner which would have allowed them to examine PW Mr. Sanjay Dubey (plaintiff No.2) today. Plaintiffs are not entitledfor further adjournment. PE is closed. Learned counselfor defendant submits that he will examinewhether defendants have to lead their evidence. In case defendants want to lead evidence, affidavit of DWs be filed within eight weeks with advance copy to learned counselfor plaintiff. Matterisadjourned to 31"' September, 2015for DE. "

7. Chamber Appeal vide OA No; 368/2015 filed by the appellants under Chapter II Rule 4 of Delhi High Cdutfi.^d^ Side Rules, 1967, was rejected by the learned single Judge vide;order d 28.01.2016. This order refers to repeated opportunities and persistent failure of the appellants from 2012 to 2015 to lead evidence. Accordingly, the suit was dismissed as the appellants had failed to discharge'th&;orijas;o^f^ the issues in exercise ofpower under Order XVII Ride

8. However, the appellants• a reprieve and one last opportunity to lead and conclude their evidence within three months and in any event not later than 31.i08.2016:.vide,:p^^^ 25.05.2016 passed in RFA (OS) No. 11/2016. The indulgence was subject to the appellants paying costs of Rs. 50,000/- within eight weeks. All rights of the parties were reserved. The order dated 28.01.2016 dismissing the OA No. 368/2015 was set side and the suit was restored on terms.

9. The appellants took another chance by filing an appHcation, LA. No.30665/2016 in' RFA (OS) No.11/2016, for waiver of costs. The application was dismissed by the Division Bench vide order dated Zs2016 observingthatitwould be opento appellantsto n>ove ^e learned single Judge for appropriate extension oftime to depos>t " anapplicationbeingfiled itwouldbeopentothelearnedsmgleJudge his discretion.

10. By order dated 29.08.2016 passed by the learned single Judge, the appellantsweregrantedoneweeks' timepaycostofRs.50,000/-tothe sai Indants" through counsel as alast "PP—' ^ prejudiceto therights and contentionsofthe first andthirddefendant the Is ondentNos.l (sincedeceased)an^iin^sentappeal.^eappe ^ werewarnedthatifthecostswe^c^ot#«ithintheextendedtim^week, no fUrther opportunity would be^gnintcd. It was obse^ed t^at th court was not m aposition to grant.pportoty to the appeUants to lead evidencebeyondthedatefixedbytli^Di|jsi|nBench.

11 The appellants had thereupp^s|re^ 31897/2016 fo extensionoftimeinR.A(Oslioi^l^applicationwasdi^^ ofby the Division Bench vide order dated 31.08.2016 observing that appeUants were simply int^,stcd^ihJ,ol^in#e litig.« ^ settled in 2012 and for over 'tee^yeaVs and nine months and mne opportunities the appellants hadfailed to lead evidence. Nevert ^ order dated25.5.2016 the DivisionBenchhad afforded one opportunity^ the appellants to lead evidence within three months. Subsequently by the order dated29.08.2016theDivisionBenchwhiledismissingthe apphcation seekingwithdrawalofcosts,hadobservedthattheappellantscouldmovean applicationbeforethelearnedsinglejudgeforextensionoftimeforpayment Page[4] of 8 ny of costs. In harmony with the said orders, the appellants were given an option to move acomposite applicationbefore the learned single Judge for extension oftime to deposit costs andfor leading evidence.

12 Impugnedorder dated 02.09.2016 passedby the learned single Judge statesthattheappellantSanjayDubeyhadappearedinpersonandstatedthat costsofRS. 50,000/-hadbeenpaidthroughRTGS transferto the accountof the seconddefendant i.e. SaurabhAbhishek. LearnedsingleJudge observed. thatno "such" direction was givenby theDivisionBenchm the orderdated 25 05 2006 or the order passed by her on 29.08.2016. Further, the second defendant Saurabh Abhishek had notippeared and was not represented beforetheDivisionBenchon25:05.20l|orWorethelearnedsmgleJudge on 29.08.2016. • " 'M' ^

13 Learned counsel &r Respbndeng^o.^, Rajender Kumar, has stated that Saurabh Abhishek, is abspindi^ ^^traceable. He is not mWc with his brother i.e. Respondent:iSiSf -'^er respondent No.l, Meena Kumari, who has s^^^^iifes that the RTGS „m^ ^ was deliberately and intentionally "made" by the appellants to Saurabh Abhishek, knowing fU«,.hat|au;|W,#ishek had disassociat^ himself from the first and thirH reii,ondents who were contesting e proceedings. Order dated 29.08.2016 passed by the learned single Judge videpara5hadtherefore specificallydirectedthat costsshallbepaidto the first andthird defendants i.e.. respondentNo.'s 1and 3,byreferrmgto them as the said defendants.

14 Theappellants acceptand admitdelayinpaymentofcosts, albeitstate thatthe mother ofthe first appellant was ailing and hadto undergo dialysis thrice aweek. The respondents had failed to famish interest in spite of direction by the Division Bench mFAO(OS). 188/2013.

15 The suit for specific performance filed by the appellants in2009 has been deliberately delayed andprolonged as the appellants were enjoyingan intenn. order. Despite numerous opporfanit.es spread over tl.ee years. directions of the Division Bench to the appellants to conclude evidenc withinthreemonthsvideorderdated25.05.2016 subjecttopaymentofcost ofRs.50,000/. neither the costs were paid to the respondent Nos. 1an nor evidence wasled. Plea oflackor^oi^ishing ofdetails ofthe party interestis ashamand frivolpus ^^i^sion. Theorder intfasreg^ telied on by appellants was made on #4,2013, Division Bench granting one opportunity with costs o passed on25.05.2016.

15 Byorderdated29.08.20i[6];filfeleJudgehaddirectedfaat eosts be paideitherto thefirs^^eid^* >1— 7^7^^ NO. 1and 3before us and not to Saurabh Abhishek, This is ceary direction given in para 5?of,Ae. s^oito^i^rabh Abhishek had entered appearance before the Division Bench when the order dae 25052016 was passed in RPA (OS) No. U/2016. The conduct of fa appellants inpurportedly payingcosts to Saurabh Abhishek, afact^ ta,1. ™™i. - -—maliciously andwith evil intentpaying 'costs' to Saurabh Abhishek. was non-compliance. '2^ n. However, on two aspects &c appellants are factually correct Two j A A OS 7016 and 31.08.2016 had Division Benches vide two orders dated 25.05.2016 given an option to the appellants to approach the learned smge uge extension oftime to depositcosts and also to lead evidence. The aforesaid fact and indulgence was not noticed by the learned smgle Judge wh,e dismissing the suit vide order dated 02.09.2016. Secondly, learned smgle Judge had granted the appellants one week's time with effect from 29.08.2016 for payment of costs. Ms period was not over when the impugnedorderdismissingthe suitwasp^sedon02.09.2016.

18 Keeping in view the aforesaid,pisition,^ allow the present appeal with the direction that the appelte^'ShMl pay Rs. 75,000/- i.e. Rs. 50000/- phis additional Rs. 25;000/. o^So respondent no. 3within a periodoftwentydays fromtoday: phtlyipaymentofthesaidcosts thesuit will be revived. In case the cost i^of is not paid, the suit will not be revived. Costswouldbepaidl^,wi|f%MdraftinfavourofR^™^ Kumar i.e. respondent no. 3i5ei||||p»ld "e deposited with the Registry ofthis courtwithintwenty'da^^fiom1211-2018-,9. We also directthat th,®,.Ua^|w®^ before29.03.2019. No further opporluiiitywouldbe granted.

20 However, we are not inclined to restore the interim stay orderwhich was passed earlier. Deliberate delay and desire to prolong the litigation on the part ofthe appellants is apparent. This malevolent behaviourhas been repeatedly highhghted in different orders, but the appellants have paidno heed, in any case there is no stay order in operation from the date dismissal ofthe suit on 02.09.2016. Page[7] of 8 ♦ 3^7