GIANI RAM/GYANI RAM & ANR. vs ARJUN YADAV & ANR.

2024-03-07 Information

$~21

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 07th March, 2024
+ CS(OS) 168/2019 & CRL.M.A. 24370/2023, I.As. 4280/2019, 4281/2019, 17560/2022

GIANI RAM/GYANI RAM & ANR. ….. Plaintiffs
Through: Mr. Mukesh Kumar Verma, Advocate with P-1 in person.

versus

ARJUN YADAV & ANR. ….. Defendants
Through: Mr. Ashish Mohan, Mr. Vivek Singh Bishnoi, Mr. Ankur Bansal, Ms. Sagrika Tanwar & Mr. Digvijay Singh, Advocates.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
O.A. 122/2023 (u/Rule 5 of Ch. II of the Delhi High Court (Original Side) Rules, 2018)

1. By way of present Appeal, the appellants/defendants seek to set aside the impugned Order dated 13.09.2023 passed by the Joint Registrar vide which the, the Application No. I.A. 20218/2022 under Order IX Rule 7 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC, 1908) filed on behalf of the appellants/defendants seeking to set aside the Order dated 28.10.2022 has been dismissed.
2. It is submitted on behalf of the appellants/defendants that owing to COVID-19 Pandemic, the appellants/defendants lost the contact with their counsel who also apprised the Court that he is not able to get any instructions from the appellants/defendants. Thereafter, counsel for the appellants/defendants filed the Application I.A. No. 14239/2022 under Section 151 of CPC, 1908 seeking withdrawal of his vakalatnama which was eventually allowed vide Order dated 22.09.2022 and the counsel for the appellants/defendants was discharged.
3. On 27.09.2022, 12.10.2022 and 28.10.2022, none appeared on behalf of the appellants/defendants. Therefore, vide Order dated 28.10.2022, the right to cross-examine PW1 by the appellants/defendants was closed.
4. PW1/Mr. Gyani Ram was partly examined on 27.09.2022 and his testimony was finally concluded on 28.10.2022.
5. The Application No. I.A. 20218/2022 under Order IX Rule 7 read with Section 151 of CPC, 1908 was filed on 24.11.2022, wherein it was submitted that defendant No. 1 got hospitalised in the Fortis Hospital, Vasant Kunj on the following dates: –

S. No.
Date of Admission
Date of Discharge
1.
05.03.2020
07.03.2020
2.
31.07.2020
03.08.2020
3.
10.12.2020
12.12.2020
4.
09.07.2022
13.07.2022
5.
16.08.2022
18.08.2022

6. The defendant No. 1 being hospitalised, the defendant No. 2 being the Attorney Holder was taking care of the defendant No. 1 while he was admitted in hospital and for this reason, the appellants/defendants were unable to get in touch with the counsel and their right to cross-examine PW1/Mr. Gyani Ram was closed vide Order dated 28.10.2022.
7. It is submitted that after their right to cross-examine PW1/Mr. Gyani Ram being closed, the Application No. I.A. 20218/2022 under Order IX Rule 7 read with Section 151 of CPC, 1908 was filed on behalf of the appellants/defendants against the Order dated 28.10.2022 without any delay.
8. It is further submitted that the appellants/defendants inability to appear in the Court was due to cogent reasons as explained in the Application No. I.A. 20218/2022 and the serious prejudice would be caused if the Order dated 28.10.2022 is not set aside and they are not permitted to cross-examine the PW1/Mr. Gyani Ram.
9. Learned counsel on behalf of the respondents/plaintiffs has vehemently opposed the present Chamber Appeal on the ground that vide detailed and reasoned Order dated 13.09.2023, the Application No. I.A. 20218/2022 under Order IX Rule 7 read with Section 151 of CPC, 1908 was dismissed by the Joint Registrar.
10. The respondents/plaintiffs are 83 and 75 years old who had instituted the present Suit in the year 2019 and owing to conduct of the appellants/defendants, they would suffer immensely if the present Chamber Appeal is allowed.
11. It is further submitted on behalf of the respondents/plaintiffs that the appellants/defendants are indulging in the dilatory tactics as the affidavit of evidence of PW1/Mr. Gyani Ram was filed in February, 2020, despite which the appellants/defendants have delayed his cross-examination.
12. It is, therefore, vehemently argued on behalf of the respondents/plaintiffs that there is no merit in present Chamber Appeal which is liable to be dismissed.
13. Submissions heard.
14. The perusal of the record shows that the affidavit of evidence of PW1/Mr. Gyani Ram was filed on 07.02.2020. The examination-in-chief of PW1/Mr. Gyani Ram in part was conducted on 27.09.2022 and was finally concluded on 28.10.2022.
15. The other witnesses of the respondents/plaintiffs are yet to be cross-examined. The only impediment which the appellants/defendants are facing is that their right to cross-examine PW1/Mr. Gyani Ram was closed vide Order dated 28.10.2022. As on date, the appellants/defendants may not get an opportunity to cross-examine PW1/Mr. Gyani Ram though they are permitted under the law to join the proceedings subsequently.
16. Considering that the right of the appellants/defendants to cross-examine PW1/Mr. Gyani Ram was closed on 28.10.2022 and soon thereafter, the Application No. I.A. 20218/2022 under Order IX Rule 7 read with Section 151 of CPC, 1908 filed on behalf of the appellants/defendants seeking to set aside the Order dated 28.10.2022 was filed on 24.11.2022. Though the defendant No. 2 was not under any serious disability to appear in the Court, considering that aforesaid circumstances which prevailed during the COVID-19 Pandemic which handicapped the world at large from March, 2020 to February, 2022 derailing the people from their normal lives, and the said period which the learned counsel for the respondents/plaintiffs was covered by the COVID-19 Pandemic.
17. In the interest of justice, the present Chamber Appeal is allowed and the Order dated 13.09.2022 dismissing the Application No. I.A. 20218/2022 under Order IX Rule 7 read with Section 151 of the CPC, 1908 filed on behalf of the appellants/defendants, is set aside, subject to costs of Rs. 10,000/- to be paid to the respondents/plaintiffs.
18. The appellants/defendants are granted one opportunity to cross-examine PW1/Mr. Gyani Ram and under no circumstance, further opportunity shall be granted to the appellants/defendants.
19. Since, the respondents/plaintiffs are 83 and 75 years old respectively as stated by the learned counsel for the respondents/plaintiffs it is also expected that the respondents/plaintiffs shall also expedite the recording of the evidence and shall not seek any adjournment unnecessarily.
20. Accordingly, the present Chamber Appeal is disposed of in the above terms.
CS(OS) 168/2019
21. List before the Joint Registrar for recording of evidence on 30.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE
MARCH 07, 2024
S.Sharma

CS(OS) 168/2019 Page 5 of 5