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Raj Trading Corporation Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 470 of 1983
Judge
Reported in27(1985)DLT420; 1985RLR226
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantRaj Trading Corporation
RespondentUnion of India and ors.
Excerpt:
.....court, is put forward as a ground for adjournment, the court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time. the counsel appearing in the court sometimes complain of not being heard fully to their satisfaction......filing of the plaint, as he has no financial readiness and willingness to make the payment at that time. the trial court accepted the contention of the defendant that as the prices have gone up considerably for the last 7 years, that is why a plea for specific performance is being added to the original plaint. the plaintiff/petitioner has contested these findings. (4) to my mind the findings challenged by the plaintiff have no immediate bearing in the final order passed by the court. they are only relevant for the second part of the order, namely, that the amendment was to take effect from the date of the presentation of the application and not from the date of the suit. in fact the plaintiff has himself stated in para 12 of the petition here that the court below should have left the.....
Judgment:

S.B. Wad, J.

(1) This case is also a sad story of neglect on the part of the counsel in the case in helping the needy litigants and in assisting the courts in the administration or justice. Neither the counsel for the petitioners not the respondents were present in the court. The matters listed before me are short revisions. First Appeals etc. The counsel, thereforee, should be in readiness one after another as and when the matters are called out. It has now become almost a routine experience, both before the Division Benches and before the Single Bench that the counsel do not present themselves in regular hearing matters even after repeated indulgence stown by the courts. Most of the Benches of this Court are regularly required to dismiss the matters in default for the appearance of the counsel. But the experience is that the lesson does not go home for improving punctuality of attendance in the court. It only adds to the work of the court, which is already heavily over-worked. Restoration applications are moved to explain the absence. As a courtesy, the court does not normally probe these applications and the matters are restored. This fact not only results in the duplication of work but the entire scheme of the disposal of cases is set at naught. The figures of arrears in the trial courts, the High Courts and the Supreme Court are annually announced. They are so staggering that it would be a Herculean task to clear them in the near future. Bar and Bench are described as the two wheels of the chariot of justice. Unfortunately the experience is that the Bar does not carry the responsibility in the equal measure as that of the court. The Supreme Court has said that negligence of an Advocate is not the negligence of the litigant and, thereforee, he should not be punished by the court dismissing the matters. There is no method to ascertain whether the litigants instruct their counsel to absent from the court. Even if that is so, this practice would be injurious to administration of justice, as some litigants are always interested in delaying the matters. What is further shocking is that even the normal courtesies which were part of the judicial tradition are now completely forgotten. If counsel are in difficulty they would earlier mention their difficulty in time to the court, so that the daily board is not disturbed. But even these elementary courtesies are becoming too rare. In 1976 the Civil Procedure Code was amended and it is provided in Order Xvii, Rule l(c) that the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment. Sub-rule (d) further states that where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged in another court, is put forward as a ground for adjournment, the court shall not grant the adjournment unless it is satisfied that the party applying for adjournment could not have engaged another pleader in time. The thrust of these amendments is very clear, namely, that the matter shall not be adjourned on flimsy grounds. But what does the court do where not even a request for adjournment is made and the Advocate has simply absented himself. The court would be fully justified in dismissing such matters on merits or decide them on merits on the basis of the material disclosed on the record of the case. The counsel appearing in the court sometimes complain of not being heard fully to their satisfaction. They should ponder as to whether a right to be heard can survive in future if they would not shade their apathy to court work. I must mention here that sitting in Db we had called the President and the Secretary of the Bar Association and asked them to explain these disturbing situations to their members. But it appears that the Bar has not yet taken the matter in right nearnest.

(2) The Revision Petition is filed against the order of Sub-Judge Ii Class is Suit No. 516 of 1975. The learned Sub-Judge allowed the amendment under Order Vi, Rule 17 to incorporate the relief of the specific performance of the contract but he ordered that the amendment shall take effect only from the date on which the application for amendment was made. The suit was filed in 1975 and the application for amendment was made after seven years in 1982.

(3) The contention in the Revision Petition is that the trial court was wrong in holding that the application for amendment was not bona fide. The trial court has held that at the time of the filing of the plaint the plaintiff had admitted that he had been in arrears of payment of Installments for the work done by the defendants. He had also informed the defendants that be was financially in the had shape and would not be able to pay the Installments. The learned trial Judge, on these admissions of the plaintiff, held that the plaintiff was not in a position to seek specific performance of the contract at the time of the filing of the plaint, as he has no financial readiness and willingness to make the payment at that time. The trial court accepted the contention of the defendant that as the prices have gone up considerably for the last 7 years, that is why a plea for specific performance is being added to the original plaint. The plaintiff/petitioner has contested these findings.

(4) To my mind the findings challenged by the plaintiff have no immediate bearing in the final order passed by the court. They are only relevant for the second part of the order, namely, that the amendment was to take effect from the date of the presentation of the application and not from the date of the suit. In fact the plaintiff has himself stated in Para 12 of the petition here that the court below should have left the question of limitation open for the determination at the final stage of the case after the pleadings and evidence of both the parties were recorded.

(5) The plaintiff had allegedly entered into an agreement with the defendant on 18-11-1972 for the purchase of the total covered area of 850 sq. ft. The construction was to be carried out by the defendant/respondent and the plaintiff was to pay a sum of Rs. 2,15,000.00 in Installments. It was agreed that two shops were to be constructed on the said covered area of 850 sq. ft. The complaint of the petitioner is that pursuant to the agreement he paid different Installments amounting to Rs. l,48,000.00 by September, 1975. His further allegation is that the defendant did not construct shops according to the agreement but insisted on the plaintiff to make the payments according to the agreement. It is also alleged that the defendant asked for an undertaking from the plaintiff that he will take possessions of the shop, as constructed by the defendant without any objection. The plaintiff submits that on all these facts he filed the original suit for permanent injunction, only without asking for specific performance. According to him he was advised that such declaration and injunction was necessary before he should file a suit 'for specific performance. These allegations are, of course, denied by the defendant.

(6) There is no doubt that the prices of lands and buildings have appreciably increased since 1972. It is also seen in various cases coming before the court that the party who is in a dominant position tries to take advantage of the increase in the price. The owner refuses to complete the construction or to effect the sale deed if he has not parted with the possession. A purchaser who is initially not willing to perform his contract later on shows the willingness to perform the same. Taking a realistic view of this situation the appropriate order has to be passed so that no injustice is caused to any party. Unless the parties are given full opportunity and all relevant evidence is brought on record it is difficult to conclude as to who is trying to take the advantage of whom. The trial court has permitted the amendment but has restricted its operation from the date of the amendment of the application. It may be that after the proper evidence and further investigation the plaintiff may be able to justify his claim for amendment from the date of the suit.

(7) I, thereforee, allow the amendment, as proposed by the plaintiff and further direct that the question as to limitation is kept open to be determined by the court at the final disposal of the suit. The Revision Petition is allowed with no order as to costs.


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