Smt.Laxmi Devi v. Sanjiv Kaushik & Anr

JUDGMENT TUSHAR RAO GEDELA, J. (ORAL)

[ The proceeding has been conducted through Hybrid mode ]

¶1Exemption is allowed, subject to all just exceptions. CM APPL. 27714/2023 (for exemption)

¶2The application stands disposed of.

¶3Petitioner challenges the order dated 23.03.2023 in CS 789/2017 titled as "Sanjiv Kaushik And Rajkumar vs. Laxmi Devi" whereby an application under Order IX Rule 7 of the CPC, 1908 seeking setting aside the Order dated 13.10.2022, whereby the petitioner/ defendant was CM(M) 881/2023 & CM APPL. 27713/2023 (for stay)

proceeded ex parte, was dismissed.

¶4Learned counsel submits that the matter was last listed, before the impugned order was passed, on 28.09.2022, when the son of the petitioner had approached the learned Trial Court and was given to understand that the matter was next listed on 24.11.2022.

¶5Learned counsel submits that apparently, it was an error either of the Court staff or possibly of the son of the petitioner, who noted the next date of hearing as 24.11.2022 instead of 13.10.2022.

¶6Learned counsel submits that it is only on 30.10.2022 when the son of the petitioner met the respondent/ plaintiff, he was informed by the respondent/ plaintiff that the matter was now fixed for evidence. On that basis, learned counsel submits that the counsel for the petitioner had inspected the Court file on 07.11.2022 when it was gathered from the court record that the petitioner/ defendant was proceeded ex parte on

13.10.2022.

¶7Learned counsel submits that immediately thereafter the petitioner filed the application under Order IX Rule 7 CPC, giving the reasons as to on what grounds the petitioner did not appear, which led to the impugned order being passed.

¶8Learned counsel on query by this Court had produced the original Court diary of the counsel to show that indeed the entry on 28.09.2022 of the case, on which the next date of the hearing was noted as

24.11.2022.

¶9However, on a query, learned counsel further submits that the diary and photocopy was not placed before the learned Trial Court along with the application under Order IX Rule 7 of the CPC, 1908.

¶10Since the learned Trial Court did not have the benefit of the aforesaid documents, this Court is of the considered opinion that the petitioner can be given an opportunity to place the same on record for the consideration of the learned Trial Court in that regard.

¶11The petition is disposed of with a direction to the petitioner to place on record of the learned Trial Court, the copies of the relevant pages of the court diary within two days from today.

¶12It has been given to understand that the matter is listed before the learned Trial Court on 07.06.2023.

¶13The learned Trail Court is requested to first consider the application under Order IX Rule 7 of the CPC along with the documents now sought to be placed on record of the learned Trial Court and pass a fresh order on that basis, after issuing notice to the respondent/ plaintiff.

¶14The aforesaid petition along with pending applicaiton is disposed of with no order as to costs.

TUSHAR RAO GEDELA, J. MAY 23, 2023/nd

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 23.05.2023 + SMT.LAXMI DEVI ..... Petitioner versus SANJIV KAUSHIK & ANR. ..... Respondents HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case: For the Petitioner : Mr. Hem C. Vashisht and Ms. Kiran Kumari, Advocates. For the Respondents : None. CORAM: