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Delhi High Court
Mr. Kuldip Singh vs Oriental Bank Of Commerce on 14 September, 2000
Author: V Sen
Bench: V Sen


ORDER

Vikramajit Sen, J.

1. It is necessary, in my opinion, to collate all the prayers, and orders passed thereon by different Courts, in order to demonstrate the vexatious and mala fide nature of the present application for recalling orders previously passed in this Suit.

2. The prayer in this application is for the restoration of I.A. 2311/2000 which was disposed off on 9.3.2000 in the following words:

“This is an application seeking modifications of the orders dated 7.5.1999 and 20.9.1999. Arguments on the substance of this application have already been addressed on previous occasions. The application, it appears to me, is repetitive, vexations and intended to delay the adjudication of disputes between the parties. Orders prayed for in this application, have been prayed for earlier occasions.”

The application is dismissed with costs of Rs. 2000/-.”

3. The prayers in the present application are as under:

“a) recall its order dated 9.3.2000 where by I.A. No. 2311/2000 was dismissed and the I.A.No. 2311/2000 may be restored and heard and decided after hearing the counsel for defendant No.2.

   b) pass any such other or further orders as this Hon'ble Court    may deem fit and/or proper in the circumstances of the instant    case."   
 

4.  The prayers in the application I.A. 2311/2000 are as under:       

 "(a) Clarify/modify the order dated 7.5.1999 and 20.9.1999 to the    extent that defendant No.2 was to pay Rs. 40,000/- P.M. as stated    by counsel till 12th July, 1999 and not thereafter, when application I.A. No. 4175/99 was order to be heard and decided. 
 

   (b) pass any such other or further orders as this Hon'ble Court    may deem fit and/or proper."    

Although Section 151 of the Code of Civil Procedure has been purportedly invoked, the prayer, in essence, is for the review of the orders passed on 9.3.2000. It is well settled that the inherent powers of the Court are not exercisable where a specific provision exists in the Code itself. Therefore it is incumbent for the applicant to make out a case for Review under Order XLVII of the Code of Civil Procedure.

5. Orders dated 7.5.99, 20.9.99 and 8.2.2000 read as follows:

“7.5.99

I.A. No. 4175/99.

“Notice, returnable on 12th July, 1999.

Suit No. 604/90 & I.A. No. 1281/99

The learned counsel appearing for defendant No.2 submits son instructions that without prejudice to the rights and contentions, he would deposit Rs. 40,000/- with the Registrar of this Court towards future rent which would start from May, 1999. The amount shall be deposited on or before the 15th day of every calendar month. The learned counsel for defendant No.2 submits that no third party right shall be created.

   List this matter again for arguments on this application on 12th    July, 1999. 
 

   Sd/ Dalveer Bhandari; J." 
 

   "20.9.99. 
 

   IA 9280/99 in Suit 604/90
 

   "An application by defendant No.2 whereby an unequivocal and    unconditional apology has been tendered with regard to the dishonoured cheque bearing No. 249112 and for taking on record the    bank draft No. 596592. 
 

   Heard the learned counsel for both the parties. Apology is accepted. Let the bank draft bearing No. 596592 be accepted and    taken on record. Defendant No.2 is hereby directed to deposit the    future rent month by month in terms of the order dated 7.5.1999. 
 

   Application is disposed of accordingly. 
 

   Plaintiff would be free to withdraw the amount deposited. 
 

   Suit No. 604/90. 
 

   Adjourn and put up on 30th November 1999 for further proceedings. 
 

   Sd/- Mohd. Shamim, J." 
 

   "8.2.2000. 
 

   Suit No. 604/90
 

   "There is another suit pending which was filed by the mother of    the plaintiff in respect of the property in suit. In my opinion,    it will be appropriate that this suit is also tried alongwith the    suit filed by the mother of the plaintiff. The other suit is    listed before Hon'ble Mr. Justice Vikramajit Sen. 
 

   List this case alongwith Suit No. 1002/82 before Hon'ble Mr.    Justice Vikramajit Sen on 11th February, 2000. 
 

   I.A. 4175/99. 
 

   On the last date of hearing, defendant No.2 was directed to    produce the order of attachment alleged to have been issued by    the Municipal Corporation of Delhi whereby rent to the extent of    Rs. 8,500/- p.m. was attached by the Corporation. On 7th May,    1999 defendant No.2 had agreed to deposit with the Registrar of    this Court a sum of Rs. 40,000/- p.m. as rent starting from May,    1999. A review of this order was also sought which was dismissed    on 29th September, 1999 and an appeal filed against the order    dated 29th September, 1999 was also dismissed on 30th November,    1999. I am informed that defendant No.2 had deposited the amount    in Court which has since been withdrawn by the plaintiff. Even    assuming that the rent to the extent of Rs. 8,500/- p.m. was    attached by the Corporation, defendant No.2 in terms of the order    dated 7th May, 1999 was required to deposit the balance amount.    Attachment order has not been brought to Court by counsel for    defendant No.2. 
 

   As this suit is being transferred to the Court of Hon'ble Mr.    Justice Vikramajit Sen, an adjournment is sought by learned    counsel appearing for counsel for defendant No.2 on the ground    that Mr. H.M. Singh, Advocate, who is conducting this case on    behalf of defendant No.2 is not available today, I am not passing    any further orders in this suit." 
 

   Sd/- S.K. Mahajan, J."  
  

6.  The applicant had even filed an appeal against the orders passed on 29.9.99, which was dismissed on 30.11.99 in the following terms:     

   "C.M. No. 5333/99
 

   Allowed. 
 

   FAO (OS) No. 349/99. 
 

   This appeal is against an Order dated 29th September, 1999. The    Application was dismissed by the Impugned Order on the ground    that the Order dated 7th May, 1999 only proceeds on the basis of    a statement made by counsel on behalf of the Appellant. We have    read the Order dated 7th May, 1999. From that Order it is clear    that counsel the appearing had been instructed by the Appellant    to make the statement which had been recorded in that Order. To    be note that this statement was made in spite of the fact that IA    No. 4175/99 taken out by the Appellant was pending and had been    made returnable on 12th July, 1999. The Order shows that this    statement had been made "without prejudice to the rights and    contentions". Thus the rights and contentions could only be in    that pending IA. Having made that statement it is not now open to    the Appellant to try and back out of that statement. 
 

   In our view the learned Single Judge has rightly held that there    is no question of the stay of the above Order. We see no reason    to interfere. The Appeal stands dismissed." 
 

   Sd/- Chief Justice
 

   Sd/- S.K. Mahajan, J." 
  

7. From a perusal of the above orders it is immediately evident that the original order directing the applicant to deposit Rs. 40,000/- with the Registrar towards future rent which would start from May 1999, has received the attention of four Hon’ble Judges of this Court. The use of the words “future rent” and “start from” totally demolish the repeated contention of the Defendant that the Court intended only payment of two months rent. The contentions of the Applicant have been rejected by all of them. These rejections have not persuaded the Applicant to comply with these orders or deterred him from filing fresh applications for `recalling’ the orders.

8. The Apex Court has repeatedly opined that merely because Advocates have decided to go on strike, the Courts are not impeded in passing orders on such days. In Mahabir Prasad Singh Vs. Jacks Aviation Pvt. Ltd., 76 (1998) Delhi Law Times 580 (SC) the Apex Court held that the High Court had erred in exercising its revisional jurisdiction to give relief against orders passed during a strike. It also observed as follows: “This is not a case where respondent was prevented by Additional District Judge from addressing oral arguments, but the respondent’s Counsel prevented the Additional District Judge from hearing his oral arguments on the stated cause that he decided to boycott that Court forever as the Delhi Bar Association took such a decision. Here the Counsel did not want a case to be decided by that Court. By such conduct the Counsel prevented the judicial process to have its even course flowed. Respondent has no justification to approach the High Court as it was the respondent who contributed to such a situation.”

9. In the application it has, inter alia, been pleaded that “on 30.3.2000, when the counsel for the defendant No. 2 appeared he was confronted with the aforesaid order dated 9.3.2000. It is submitted that the lawyers are on strike and the order has been passed in absence of counsel for defendant No. 2 which amounts to denial of fair opportunity and is violative of rules of natural justice. Though proxy counsel are deputed to assist the Hon’ble Court but proxy counsel has no instruction from the client to represent him in the court.” The use of the word “confronted” is wholly inappropriate. Why the counsel or his client did not inspect the Court file is a question that they must answer.

10. This is no reason or justification for filing the present application, which is not maintainable under the provisions of law, and is without merit. Since it is vexatious, it is dismissed with costs of Rs. 3000/-

S.No. 604/1990.

11. List the matter for further proceedings on 27th February, 2001.


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