Judgment:
$~49. * + IN THE HIGH COURT OF DELHI AT NEW DELHI CM(M)No.624/2017 & CM No.21077/2017 (for stay). RAMAKANT KAUSHIK & ANR ........ Petitioner
s Through: Mr. Prashant Sharma and Mr. Shubhneet Kumar, Advs. versus ..... Respondent Through: None. PAWAN SHARMA CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW % ORDER
2607.2017 CM No.26299/2017 (of the petitioner under Section 151 of the CPC).
1. The petitioners have preferred this petition under Article 227 of the Constitution of India with respect to the order (dated 30th March, 2017 in CS No.51
of the Court of Additional Senior Civil Judge (North-East), Karkardoom Courts, Delhi) allowing the application of the respondent / plaintiff under Order XVIII Rule 17 of the Code of Civil Procedure, 1908 (CPC) and thereby allowing the respondent / plaintiff to lead evidence in rebuttal to the evidence led by the petitioners / defendants pursuant to the order of the Appellate Court of remand.
2. This petition came up before this Court first on 29th May, 2017 when though notice of the petition was issued for 15th September, 2017, but no stay of the proceedings before the Trial Court sought by the petitioners / defendants by way of CM No.21077/2017 granted.
3. The petitioners / defendants in para 3 of this application have stated as under:-
"“3. That the petitioners informed the Ld. Trial Court of the factum of the present CM (Main) and informed the CM(M)No.624/2017 page 1 of 3 Ld. Trial Court to fix up a date after the hearing of the present CM (Main) which is fixed for 15.9.2017 but the Ld. Trial Court fixed up the date of hearing for 28.7.2017 for further proceedings.” I have enquired from the counsel for the petitioners / defendants as to 4. why should the conduct of the counsel for the petitioners / defendants of, inspite of this Court though having issued notice of the petition having not granted stay of proceedings before the Trial Court, still seeking adjournment of the proceedings before the Trial Court to a date after the date before this Court should not be treated as contumacious. Once this Court has refused the interim relief sought, as is to be inferred from non-grant thereof, it means that it is not open to the party approaching this Court and who has failed to get stay of proceedings before Trial Court to, on the ground of issuance of notice of the petition, seek adjournment of proceedings before the Trial Court and / or to browbeat Judges of the Trial Court to adjourn the hearing to a date after the date before this Court.
5. The counsel for the petitioners / defendants states that in fact he did not even press for the application for stay on 29th May, 2017.
6. That makes the position worse. It means that the petitioners / defendants though did not press for stay of proceedings before this Court but wanted to use the order of this Court of issuance of notice of this petition to have effect of stay of proceedings before the Trial Court.
7. Such conduct in my view prima facie becomes contumacious because of the express provision of law contained in Order XLI Rule 5 CPC which provides that mere pendency of an appeal will not amount to stay of proceedings before the Court whose order is appealed against. The litigants CM(M)No.624/2017 page 2 of 3 and the lawyers are supposed to be aware of the law and cannot make such request before the Trial Court. If they feel that they will suffer any prejudice by the proceedings going on, they have to press their application for stay before this Court and obtain order thereon.
8. Moreover if according to the counsel for the petitioners / defendants he was on 29th May, 2017 satisfied with non-grant of stay inspite of the date of 15th September, 2017 having been given and inspite of the date before the Trial Court being before that, then this application today is misconceived. Merely because of change of Roster the counsels cannot choose whether to press for an application for stay or not and this Court would not be justified in entertaining an application which has been not even pressed on an earlier date and without there being any change. The only change is that the request by the petitioners / defendants to the Trial Court Judge did not succeed.
9. Be that as it may, I have given an option to the counsel for the petitioners / defendants to argue this petition today.
10. The counsel for the petitioners / defendants states that he will argue the main petition on 15th September, 2017 and does not press this application. Dismissed as not pressed. No costs. RAJIV SAHAI ENDLAW, J JULY26 2017 ‘pp’.. CM(M)No.624/2017 page 3 of 3