Order 5

Order Details: COPY OF ORDER
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RCA No. 111/2023
Shahid v. Ram Kumar Sharma
CNR No. DLSH01-006214-2023
09.11.2023
ORDER
1. Vide this Order, I shall dispose off Appellant’s
application under Order 41 Rule 5 CPC seeking stay of
operation of Impugned Order dated 04.05.2023 and Impugned
Judgment dated 03.08.2023. No reply to the said application filed
by Respondent and ld. counsel for respondent has straightway
argued upon the same.
2. Arguments were already addressed by Ld. counsels
for parties on the said application.
3(a). Ld. counsel for Appellant has submitted that
Appellant (Defendant before the trial court) had filed an
application under Section 151 CPC (dated 03.08.2023) seeking
setting aside of Order dated 04.05.2023 before the Ld. trial court.
Ld. counsel has submitted that vide Order dated 04.05.2023, right
of Defendant to lead evidence was closed by Ld. trial court and
Impugned Order dated 04.05.2023 was passed on 03.08.2023.
The Impugned Judgment was also passed on 03.08.2023. Ld.
counsel has submitted in said application that wife of the counsel
was suffering from kidney disease and was on dialysis on
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alternate days and due to this reason, counsel was not appearing
in court. He further submitted that despite having a genuine
reason, he was not given opportunity to lead defence evidence
and Impugned Judgment dated 03.08.2023 was passed by the Ld.
trial court.
b). Ld. counsel for Appellant further submitted that it
is only because of default on the part of Advocate, that
Appellant had suffered and Impugned Order/Judgment dated
03.08.2023 was passed without granting an opportunity to
Defendant to lead his defence evidence. Ld. counsel further
submitted that Appellant is not much educated and works in
Garment shop and he has no knowledge about the court
proceedings and he was totally relying upon his Advocate and
for this reason, he could not appear in court on said date. Ld.
counsel further pointed out that the suit was filed by Respondent
(Plaintiff before the ld. trial court) in respect of third floor of
Property No. 977, Janta Flat, GTB Enclave, Delhi, whereas the
Respondent/Plaintiff had filed before the trial court Conveyance
Deed in support of his title in respect of suit property, wherein
only Ground Floor is mentioned. Ld. counsel further submitted
that if the operation of impugned order/Judgment is not stayed,
Appellant shall suffer irreparable loss and will be on road as he
has no other place to reside. Ld. counsel has relied upon
Judgments i.e. Civil Appeal no. 1415 of 1981 (DOD as
16.04.1981) passed by Hon’ble Apex Court and Writ Petition
(Civil) No. 8917/2007 titled as Koutons Retail India Ltd. v.
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Pramod Prasad Gupta and anr. (DOD as 29.09.2008) of Hon’ble
High Court of Delhi.
4. Per contra, Ld. counsel for Appellant has opposed
the application by stating that the Appellant is a resident of
Urban area. Appellant had signed the pleading in English and
therefore, it should be presumed that he is well aware about the
court proceedings. Ld. counsel further submitted that Respondent
had changed his Advocate 2-3 times before the ld. trial court. Ld.
counsel submitted that the application needs to be dismissed. ld.
counsel further submitted that even if the present application is
allowed and stay is granted, it should be only against security,
which shall be furnished by the Appellant for the due
performance of decree in favour of Respondent/Plaintiff.
5. I have carefully gone through the record of this
appeal as well as record of Trial court.
6. Perusal of trial court record shows that the Suit was
filed by Respondent on 21.12.2020. PE was closed on
17.09.2022 and matter was listed for DE on 12.12.2022. Since
then, four opportunities were granted to defendant to lead DE and
by Order dated 04.05.2023, his right to lead evidence was closed.
Thereafter, Defendant preferred the application under Section
151 CPC seeking to set aside said Order dated 04.05.2023, which
was dismissed and suit was decreed in favour of Plaintiff and
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against the defendant on 03.08.2023. Perusal of record further
reveals that counsel for Appellant/Defendant was not appearing
before the trial court on most of the occasions and in his
application dated 03.08.2023 he had explained the reasons of
his previous non appearance by stating that his wife was
suffering from kidney disease and was on dialysis on alternate
days and due to this reason, counsel was not appearing in court.
7. In view of aforesaid rival submissions of ld.
counsels for parties and overall circumstances, the matter
requires consideration. The operation of Impugned Judgment
dated 03.08.2023 is hereby stayed till the outcome of this appeal
subject to Appellant furnishing a sum of Rs.1,00,000/- in the
form of auto renewal FDR in the name of Court within one
month. Thus, the aforesaid application stands disposed off.
A copy of this order be sent to the Ld. Executing
Court, wherein execution proceedings qua Impugned Judgment is
pending.
As prayed, a copy of this order be given dasti to
both sides.
(Mohammad Ehtesham)
ADJ-03(Shahdara),
KKD Courts, Delhi
09.11.2023.
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