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2011 DIGILAW 944 (DEL)

D. v. Singh VS Pritam Singh Taneja

2011-11-02

VALMIKI J.MEHTA

body2011
JUDGMENT CM No.4420/2011 (for condonation of delay) 1. The delay of 739 days is stated to have been caused on account of pendency of a review petition challenging the impugned judgment and which review petition was immediately filed after the impugned judgment. The present appeal has been filed within a reasonable period of the review petition being disposed of. Therefore, in my opinion there is a sufficient reason for condonation of delay for the reasons as stated in the application, more so in the absence of any response. The application is allowed. The delay is condoned. CM stands disposed of. RFA No. 132/2011 2. Learned Counsel for the defendant/respondent states that his client is not contacting him. In my opinion, this is not a good ground for adjournment considering the facts of the present case. I have therefore heard learned Senior Counsel for the appellant and am proceeding to dispose of the appeal after perusing the record. 3. The challenge by means of this Regular First Appeal under Section 96, CPC is to the impugned judgment of the Trial Court dated 5.10.2008 which rejected the plaint under Order 7 Rule 11, CPC. The suit which was filed was a suit for recovery of Rs.1 9,95,000/- on account of the plaintiff setting up a case that he was defamed by the respondent/defendant. 4. The plaint has been rejected under Order 7 Rule 11, CPC, and it is not as if the suit has been dismissed after the trial. The plaint has oeen rejected on two counts. The first count is that the communications between the defendant/respondent with the Registrar of Co-operative Societies in which the alleged defamatory statements have been made are privileged communications. The second ground is that the letters which caused defamation to the plaintiff were not signed or found to have been written by the defendant/respondent. 5. Learned Senior Counsel for the appellant rightly argues that it is not necessary for a letter to have been signed by a person and on his letterhead or before it is said that is only of the said person. It is argued that during the course of evidence, the appellant/plaintiff could have shown that the letters were, in fact, issued by the defendant/respondent, and it is not permissible to arrive at a finding of disputed question of fact while hearing an application under Order 7 Rule 11, CPC. 6. It is argued that during the course of evidence, the appellant/plaintiff could have shown that the letters were, in fact, issued by the defendant/respondent, and it is not permissible to arrive at a finding of disputed question of fact while hearing an application under Order 7 Rule 11, CPC. 6. It is also argued by learned Senior Counsel for the appellant that as per the provisions of Order 14 Rule 2, CPC, all issues have to be heard and decided together except issues where the jurisdiction of the Court is concerned, and therefore, it is argued that issues on merit of privilege also could have been decided only at the stage of final arguments in the suit. I agree. 7. Accordingly, the appeal deserves to be accepted and the impugned judgment requires to be set aside inasmuch as not only disputed questions of fact which have to be decided after trial have been decided in application under Order 7 Rule 11, CPC, but also issues which could only have been decided at the stage of final arguments, have been decided at the stage of pleadings in violation of Order 14 Rule 2, CPC. 8. Accordingly, the appeal is allowed. The impugned judgment dated 6.10.2008 is set aside. Parties are directed to appear before the District and Sessions Judge, Delhi on 13.12.2011 and on which date or any other subsequent date the District and Sessions Judge, Delhi will mark the suit for disposal to a competent Court in accordance with law. Parties are left to bear own costs. The appeal is disposed of accordingly. Appeal Allowed.