Leela Devi & Ors v. Sarla Garg

V.B.GUPTA, J. mw

* HIGH COURT OF DELHI : NEW DELHI CM (M) No. 1003/2010 & CM No. 13727/2010 (stay) % Judgment reserved on: 4th August, 2010 Judgment delivered on: 6th August, 2010 1. Smt. Leela Devi 2. Shri Manoj Kumar 3. Sh.Pankaj Kumar 4. Sh. Nitin Kumar 5. Ms. Pooja ….Petitioners. All residents of 3345, First Floor Kucha Kashgiri Bazar Sita Ram, Delhi. Through: Mr. Manoj Kumar, Advocate. Versus Smt. Sarla Garg W/o of Sh. Satish Garg R/o D-778, Saraswati Vihar Pitampura, Delhi ….Respondent Through: None Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. 1. Present petition under Article 227 of the Constitution of India has been filed against order dated 13.7.2010 of Senior Civil Judge, (West) Delhi, vide which application of petitioners under Section 151 of Code of Civil Procedure (for short as "Code") for recalling of order dated 12.5.2010, was dismissed. 2. At the time of hearing, it was observed that petitioners have not placed on record complete list of dates of the trial court proceedings. Petitioners were given opportunity to file the same, however, their counsel stated that he does not want to file the same and shall argue the matter. 3. It is argued by the learned counsel that on 23.4.2010 three witnesses of petitioners were present. However, the counsel was not available and due to this, these witnesses could not mark their presence. 4. Other plea is that, on 12.5.2010 petitioners were under bona fide belief that Court will first decide the issue of deposit of costs and thereafter witnesses would be allowed to be examined. Due to this reason, witnesses were not called by the petitioners. On that date, petitioners moved an application for permission to deposit the cost in instalment. Absence of witnesses on 12.5.2010 was neither intentional nor deliberate and as such order dated 12.5.2010 be recalled. 5. In entire petition it is nowhere stated as to on which date issues were framed and what was the first date for evidence of the petitioners. Nor it is stated as to how many witnesses petitioners wants to examine and whether any list of witnesses has been filed. 6. On 12.5.2010, petitioners filed an application under Section 151 of the Code seeking permission to deposit cost of Rs. 25,000/- imposed upon them by this Court, vide judgment dated 11.2.2010 in CM (M) No. 206/2010. Petitioners also filed an application for modification/reduction of cost before this Court which was dismissed on 10.5.2010. 7. Trial court in its order dated 12.5.2010 observed:- "In the entire application, the defendants have not made a mention about either the aforesaid petition or the order passed by the Hon"ble High Court of Delhi thereupon. Therefore, the conduct of the aforesaid defendants is not bona fide." 8. This order further reads:- "On the last date of hearing, it was clarified to the defendants that today would be the last and final opportunity for leading defence evidence in the matter. Today again, no DW is present. Several opportunities have already been granted to the defendants to lead evidence in the matter. Therefore, the right of the defendants to lead further evidence in the matter stands closed. At this stage, learned counsel for the aforesaid defendants has placed on record three affidavits of witnesses namely Shri Rajinder, Shri Sunder Lal and Shri Sri Ram. These witnesses are not present in court today, therefore, these affidavits cannot be considered now." 8. After dismissal of petitioners application under Section 151 of the Code, Petitioners filed an application for reconsideration/recalling of order dated 12.5.2010. That application was dismissed by the trial court vide order dated 13.7.2010 which reads as under:_ "Today the matter is listed for final arguments. An application u/S 151 CPC has been filed on behalf of aforesaid defendants for permission