Appeal against dismissal of an application under Order IX Rule 13 CPC. The appellant claimed counsel negligence for not filing a written statement. The High Court found the appellant concealed facts, noting she had admitted documents and cross-examined witnesses, and upheld the lower court's order.
Present appeal and all applications dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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SUSHMA ..... Appellant Through Mr. S.K. Anand and Mr. D.V. Sharma, Advocates
versus
GAMESH MATHUR & OTHERS. ..... Respondents Through Mr. Anand Yadav and Ms. Anita Tomar, Advocates for respondents no.1 to 3.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J. (ORAL)
FAO(OS)106/2018
Page 1 of 6
way of evidence, the appellant herein cross-examined all the witnesses of the plaintiffs in the suit. The plaintiffs closed their evidence on 18.05.2016 and the suit was listed before the Court on 03.08.2016 and 15.11.2016 for final arguments, on which dates the counsel for the defendant no.3, the appellant herein had appeared. The suit thereafter came up for hearing on 09.08.2017. We are informed that the matter was shown regularly in the category of ‘Final Hearing Matters’, but was taken up for hearing on 09.08.2017 when the counsel for the appellant herein did not appear. The matter was taken up thereafter on 10.08.2017 when final arguments were heard, judgment was reserved and an ex parte judgment was pronounced on 03.01.2018.
FAO(OS)106/2018
Page 2 of 6
the suit was instituted in the year 2011. Since an ex parte injunction was not granted in favour of the plaintiffs, the plaintiffs were forced to file an FAO. Respondents no.1 to 3 were also directed by the Court to deposit the sale consideration, however, the respondents had withdrawn the FAO subsequently.
FAO(OS)106/2018
Page 3 of 6
an application under Order XXIII Rule 3 of the CPC by the plaintiffs on the one hand and defendants No. 1 and 2 on the other hand was taken up and the suit, insofar as against the defendants No.1 and 2, was decreed in terms of the compromise arrived at and ordered to continue against the defendant No. 3 only; (vii) on 25th January, 2012, Mr. Satender, Advocate appeared for defendant No. 3; no written statement had been filed and the said Mr. Satender, Advocate also expressed inability to admit/deny the documents and sought adjournment; (viii) the order dated 12th March, 2012 records the presence of Mr. Ashok Chikara, Advocate for defendant No. 3; he stated that the written statement had been filed in the Registry on 21st January, 2012 along with an application for condonation of delay; (ix) that the position remained the same on 29th August, 2012; (x) that on 15th January, 2013, Mr. Jaspreet Singh, Advocate appeared for defendant No.3 and since the written statement was not found on record, the right of the defendant No. 3 to file written statement was closed; (xi) thereafter also, Mr. Jaspreet Singh, Advocate having Enrolment No.D875/2017 continued to appear for defendant No.3; (xii) that vide order dated 2nd August, 2013, the plaintiffs were relegated to lead ex parte evidence; (xiii) that the plaintiffs thereafter examined as many as nine witnesses who were all cross-examined by Mr. Jaspreet Singh, Advocate for the defendant No. 3, so much so that when the right of defendant No.3 to crossexamine PW8 and PW9 was closed on 11th December, 2015, on request of Mr. Jaspreet Singh, Advocate, another opportunity was given vide order dated 18th January, 2016; (xiv) that the plaintiffs closed their evidence on 18th May, 2016 and the suit was listed before Court on 3rd August, 2016 and on 15th November, 2016 for hearing final arguments and on both of which dates Mr. Jaspreet Singh, Advocate appeared for defendant No.3.
FAO(OS)106/2018
Page 4 of 6
adverse orders against the defendant No.3 were deferred and on 10th August, 2017 final arguments were heard and judgment reserved and ex parte judgment pronounced on 3rd January, 2018.
FAO(OS)106/2018
Page 5 of 6
another opportunity was granted vide order dated 18.01.2016. The learned Single Judge has also noticed that the counsel for the defendant no.3, appellant herein continued to appear in the matter and cross-examined all the witnesses. The learned Single Judge has also noted that the plaintiffs closed their evidence on 18.05.2016 and the suit was listed before the Court on 03.08.2016 and 15.11.2016 for final argument when Mr. Jaspreet Singh appeared for defendant no.3. Thus, the stand taken before us today that one Shri Ashok Chikra, Advocate was appointed who did not prepare the written statement in the matter is not borne out from the record.
G.S.SISTANI, J.
SANGITA DHINGRA SEHGAL, J.
JULY 06, 2018 pst
FAO(OS)106/2018
Page 6 of 6
3 issues framed by the court
Whether the learned Single Judge committed any infirmity in dismissing the application under Order IX Rule 13 CPC for lack of sufficient explanation for absence.
Whether the appellant successfully concealed the fact that the written statement was filed/not filed and that she had participated in cross-examination.
Whether the order of non-joinder was sustainable as the right to file written statement was closed by final order.
1 provisions across 1 enactments
Sushma
Gamesh Mathur
G.S.Sistani
Sangita Dhingra Sehgal
As recorded by the court registry
An appeal to a Division Bench against an order made by a single judge on the original side of the High Court.
Judgements on the same questions, provisions and authorities, from every court
