Order 5

Order Details: COPY OF ORDER
Pdf Text: CS (Comm.) No.564/2024 (04)
Smt.Anju Gupta & Ors. V/s Chaitanya Arora, Proprietor of M/s Chaitanya
Enterprises
CNR No.DLNW01-008167-2024
01.11.2025
Present: Shri Yashvant Singh, Ld. Counsel for the plaintiff.
Shri Rajat Aneja, Ld. Counsel for the defendant.
1. The pleadings in the matter are complete. Two applications
filed by the plaintiff are pending disposal. First application is under Order
XXXII Rule 1 CPC, seeking to appoint plaintiff No.1/Smt.Anju Gupta as
the guardian/next friend of minor Master Devansh Gupta and another
application under Order XI Rule 1(5) CPC,
inter alia seeking to place on
record documents like Death Certificate of deceased Late Shri Sanjay
Gupta, Survivor Member Certificate and Birth Certificates of children of
late Shri Sanjay Gupta.
2. I have heard arguments on both these applications. It appears
that Shri Sanjay Gupta, the late husband of Smt.Anju Gupta and father of
Master Devansh Gupta and Miss Lavisha Gupta and son of Smt.Veena
Gupta was engaged in the business of supplying PVC Strips, MCR Sheets,
Ghundi, Patti, Hawai Sheets etc. During his lifetime, as proprietor of M/s
Shyam Enterprises, he had supplied material/goods to the defendant,
however, he expired during Covid period; whereafter, his L.Rs have filed
the present suit.
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3. The learned counsel for the defendant has argued that
plaintiff(s) do not have locus standi to file the present suit, without
obtaining the leave of the Court. I do not find any substance in this
argument.
4. The Legal Representative is defined in Code of Civil
Procedure as under:
xxxxx
Sec.2(11) – “legal representative” means a person
who in law represents the estate of a deceased
person, and includes any person who inter-meddles
with the estate of deceased and where a party sues or
is sued in a representative character the person on
whom the estate devolves on the death of the party
so suing or sued”.
xxxxx
5. Therefore, the plaintiffs are competent to file the present suit.
Plaintiff No.1/Smt.Anju Gupta, being mother and legal guardian of
plaintiff No.2/Master Devansh Gupta can always be appointed as
“guardian” for the purpose of continuing the present litigation. The
application is accordingly allowed.
6. As regards the application under Order XI Rule 1(5) CPC,
learned counsel for the defendant has objected to taking on record the
documents. It appears that the need to file the aforesaid documents has
arisen on account of the fact that the defendant/non-applicant has
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challenged the locus-standi of plaintiff(s) to file the present suit.
Tomorrow, the defendant may challenge the factum of death of Shri Sanjay
Gupta and birth of plaintiffs No.2 and 3. The defendant may even
challenge the Survivorship Certificate. It appears that this application has
been filed to obviate all these future objections. In my considered opinion,
the documents sought to be placed on record by the plaintiff are absolutely
necessary for the free propagation of trial in the matter. The application is
accordingly allowed.
7. Today application under Order VII Rule 11 CPC has been
filed by the defendant. On account of aforesaid two applications filed by
the plaintiff having been allowed, this application does not survive, the
same accordingly stands dismissed.
8. On the basis of pleadings of the parties, following issues are
settled for trial in the matter:
Issues:
(i) Whether the plaintiffs do not have locus-standi to file the
present suit? If so, its effect? OPD.
(ii) Whether the plaintiff(s) are entitled to the decree of suit
amount, as prayed for? OPP.
(iii) If answer to the aforesaid issue is in affirmative, whether the
plaintiff(s) is/are entitled to interest thereupon. If so, at what
rate and for what period? OPP.
(iv) Relief.
9. No other issue arises or has been pressed for.
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10. The learned counsels for both the parties have consented for
recording of evidence by Local Commissioner.
11. Accordingly, I exercise my power Under Order XV A Rule 6
(o) and (p) CPC, directing that evidence in the matter shall be recorded by
learned Local Commissioner, appointed by this Court on commission
basis. Accordingly, it is directed that the evidence in the matter shall be
recorded on commission basis by Shri Sidhant Antil, Advocate, Enrolment
No.D/2223/2013, having mobile No(s).9911083232/7827456370 . The fee
of the learned Local Commissioner is fixed as Rs.8,000/- per witness
(Rs.2,000/- per formal witness). Maximum two hours’ time is permitted to
the other side to cross examine the witness. In case the time period exceeds
two hours, then the responsibility to make payment for the evidence of that
witness shall shift to the other party. The evidence shall be recorded at
Judicial Library, Rohini District Court Complex or any other place as per
the convenience of learned Local Commissioner on the date and time
agreed by both the parties, but not later than the date fixed by this Court
for submitting report. It is hereby clarified that plaintiff shall bear the
expenses of learned Local Commissioner for recording of plaintiff’s
evidence and defendant shall bear the the expenses of learned Local
Commissioner for recording of defendant’s evidence in the matter. Further,
at the time of PE, plaintiff shall arrange the typist/stenographer for
recording of evidence, failing which, learned Local Commissioner shall
arrange the same and plaintiff has to bear Rs.1,000/- per day for the same,
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which shall be in addition to the fee prescribed for learned Local
Commissioner per witness. Needless to say, same shall be the situation
at the time of recording of DE in the matter, i.e defendant would bear the
expenses of typist/stenographer @ Rs.1,000/- per day for recording of DE.
12. Ahlmad/Nazir/Reader shall make available himself/herself
with the Court file and diet money for the said purpose is fixed as Rs.500/-
per visit. Learned Local Commissioner shall record verbatim in question
and thereafter record answers verbatim. In case of any objection being
raised by any of the party, same shall be recorded verbatim which shall be
adjudicated by this Court. Learned Local Commissioner on the same day
shall supply the copy of evidence recorded to both the parties on their own
cost. The Ld. Local Commissioner shall also submit typed copy thereof in
the Court.
13. Let the list of witnesses be filed by both the parties within 15
days from today, after the exchanging copies thereof. The copy(ies) of
evidence by way of affidavit of witness(s) be also supplied to learned
counsel for the other side at least 24 hours prior to the NDOH.
14. Parties are directed to contact and appear before learned Local
Commissioner on 20.12.2025 at 2.00 P.M, who thereafter may fix dates of
recording evidence as per his convenience vis-a-vis convenience of both
the parties.
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15. The Reader attached to this Court is directed to inform the
learned Local Commissioner telephonically also in this regard.
16. A copy of this order be also given dasti to both the parties.
List the matter for report of learned Local Commissioner / final arguments
now on 24.01.2026.
17. (i) At this stage, the parties have expressed their desire to get the
matter settled through the process of mediation.
(ii) Heard.
(iii) At joint request, let the matter be placed before Ld.Judge
Incharge, Mediation Centre, Rohini Courts on 22.11.2025 at 12.30 P.M for
recording of settlement, if any, and thereafter before this Court on
24.01.2026. Parties are directed to appear before Ld.Judge Incharge,
Mediation Centre on the aforesaid date and time.
(Vinod Yadav)
District Judge (Commercial Court)-02
North-West/Rohini Courts/01.11.2025
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