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2007 DIGILAW 445 (DEL)

DINESH NASA v. DELHI DEVELOPMENT AUTHORITY

2007-03-01

H.R.MALHOTRA, SWATANTER KUMAR

body2007
SWATANTER KUMAR, J. ( 1 ) VIDE judgment and decree dated 22. 04. 2006, the suit filed by the plaintiff for recovery of Rs. 10,01,083/- was dismissed by the learned trial court while leaving the parties to bear their own costs. ( 2 ) AGGRIEVED from the said judgment and decree, the plaintiff/appellant has filed the present regular first appeal in this court. ( 3 ) IT may be noticed that the basic grievance of the appellant is that the suit was being proceeded against ex parte and the appellant/plaintiff had filed the affidavit by way of evidence annexing thereto documents from Ex. PW1/1 to ex. PW1/96, however, these documents were not formally tendered in evidence by the appellant by stepping into the witness box during the pendency of the suit. As the documents were not tendered in evidence, the trial court dismissed the suit after granting several opportunities holding that the appellant had failed to prove his case. ( 4 ) THE respondent in the present appeal was served. During the course of hearing, learned counsel appearing for the respondent contended that the order directing ex parte proceedings against them was not proper in law. It is further contended that the written statement filed by them was ordered to be struck off the record vide order dated 11. 2. 2004 when an application under Order 8 Rule 10 of the CPC was filed by the appellant, which order is also not correct. ( 5 ) DURING the hearing of the appeal, the learned counsel appearing for the respective parties upon instructions from their clients stated that the appeal could be disposed of by a consented order as all the orders passed by the trial court during the pendency of the suit have emerged into the final judgment and decree, which is subject matter of the present appeal. ( 6 ) THE agreed terms and conditions are :- (i) The present appeal be partially accepted and the parties to the appeal be directed to abide by the consented terms and conditions. (ii) The judgment and decree of the trial court dated 22. 4. 2006 (impugned judgment) be set aside and the case be remanded to the trial court for determination of the dispute between the parties in accordance with law. (iii) The order dated 11. 2. 2004 be set aside. (ii) The judgment and decree of the trial court dated 22. 4. 2006 (impugned judgment) be set aside and the case be remanded to the trial court for determination of the dispute between the parties in accordance with law. (iii) The order dated 11. 2. 2004 be set aside. The written statement already filed by the defendant in the suit be permitted to be taken on record. Replication to this written statement shall be filed by the plaintiff on the date of hearing now fixed before the trial court. (iv) As pleading of the parties will be completed on the first date of hearing, the learned trial court shall proceed to frame issues and fix the case for recording of evidence. (v) On the first date of hearing itself or on an adjourned date, the plaintiff who had filed his affidavit along with the documents on record would be at liberty to tender the same in evidence along with the documents and exhibit the same in accordance with law and on that very day, the defendant would complete the cross examination of the said witness. In the event, the appellant has to file any additional affidavit, he should file it on the first date of hearing along with replication itself. (vi) Each of the parties to the suit will not be entitled to adjournments/hearings three in number for completing their evidence whereafter the learned trial court may pass such orders as it may deem fit and proper including closing of the evidence of the defaulting party. (vii) Thereafter, the learned trial court would proceed to hear the parties and pass judgment and/or decree in accordance with law. ( 7 ) THE above agreed terms are otherwise, just, fair, proper and equitable. We accept the same. The compromise in the above terms between the parties is recorded and the appeal is disposed of in terms of the said compromise while leaving the parties to bear their own costs. The learned trial court shall proceed with the suit in accordance with the above directions. The parties to appear before the trial court on 20. 3. 2007.