Full Judgment
$~57 * + IN THE HIGH COURT OF DELHI AT NEW DELHI CM(M) No.996/2017 & CM No.33191/2017 (for stay). NITIN JAIN Through: Mr. Sarfaraz Khan, Adv. ........ Petitioner
Versus PALLAVI JAIN CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW Through: None. ..... Respondent % ORDER
1209.2017 CM No.33192/2017 and CM No.33193/2017 (both for exemption).
1. 2. Allowed, subject to just exceptions. The application stands disposed of. CM(M) No.996/2017 & CM No.33191/2017 (for stay).
3. This petition under Article 227 of the Constitution of India impugns the order (dated 5th August, 2017 in GP No.5872
of the Court of Principal Judge, Family Court, Central District, Tis Hazari Courts, Delhi) framing issues in the case and posting the matter for evidence of the respondent (petitioner in the guardianship case) on 1st and 2nd February, 2018.
4. On a reading of the petition it could not be understood as to what is the challenge to the order framing the issues.
5. The counsel for the petitioner has however drawn attention to page 98 of the paper book, being the copy of the order dated 18th November, 2016 in the guardianship case from which this petition arises and as under:-
"CM(M) 996/2017 Page 1 of 4 “GP No.16587
Pallavi Jain Vs. Nitin Jain 18.11.2016 Present:-
"None. Application is, accordingly, dismissed in default of appearance and non-prosecution. Application file be consigned to record room. Applicant was not present on last date also. Principal Judge, Family Court, Central District, THC, Delhi / 18.11.2016” 6. The counsel for the petitioner has argued that though the guardianship case so stood dismissed in default of appearance of the respondent herein but, without restoring the same, issues were framed vide impugned order dated 5th August, 2017.
7. Finding the order dated 18th November, 2016 to be referring to an application and not to a petition or a case as is ordinarily done in the case of dismissal of a petition or a case in default of appearance/non-prosecution and otherwise finding it incongruous that the Family Court would frame issues in a suit dismissed in default for non-prosecution, the counsel for the petitioner has been asked to show the orders in the case of prior to 18th November, 2016.
8. The counsel for the petitioner first contended that 18th November, 2016 was the first date in the case and there was no earlier date. However subsequently, on being prodded further, he has himself drawn attention to page 97, being copy of the order dated 5th September, 2016 in the proceeding being GP No.587
(in which issues were also framed on 5th August, 2017), posting the matter to 23rd February, 2017.
9. The same shows the falsity of the argument sought to be raised before this Court. In fact the counsel for the petitioner during the course of hearing CM(M) 996/2017 Page 2 of 4 has also drawn attention to page 100 being the copy of order dated 29th June, 2017 in GP No.58724/16, when the counsel for the petitioner raised the same argument before the Family Court and the Family Court clarified that on 9th January, 2017 (sic for 18th November, 2016) it was only an application which was dismissed in default. In fact from the number GP No.16587
in the order dated 18th November, 2016 also it is clear that what was dismissed on 18th November, 2016 was either a different case than in which orders dated 5th September, 2016, 29th June, 2017 and 5th August, 2017 supra were made or an application therein.
10. The counsel has not only thought of drafting a petition with false averments but also of vehemently pursuing the same. In fact, once the matter had on 5th September, 2016 been adjourned to 23rd February, 2017, the question of the same being dismissed in default on 18th November, 2016 did not arise.
11. The present is a classic case within the parameters drawn by the Supreme Court recently in Dnyandeo Sabaji Naik Vs. Pradnya Prakash Khadekar (2017) 5 SCC496of a practice having developed of the litigants totally abusing the process of the Court, filing frivolous and groundless cases/petitions and the counsels aiding and abetting the same and Supreme Court has held that such situations have to be dealt with severity to prevent such happenings in future. It was held that if the same were tolerated, the Courts will be choked and groundless and frivolous litigation will consume time of and clog the Court infrastructure leaving no time for genuine litigants.
12. Upon the counsel for the petitioner still continuing to argue, I have asked him, whether he personally as a counsel is willing to take CM(M) 996/2017 Page 3 of 4 responsibility for what he has argued.
13. The counsel then states that he is a “briefed counsel”, only to argue and does not know about the case. However there is no briefing Advocate along with him.
14. The counsel then seeks adjournment.
15. Upon it being put to him that the same will be subject to costs, Mr. Sarfaraz Khan, Advocate states that the petitioner is present and he withdraws the petition.
16. At this stage, the counsel himself seeks to withdraw the petition.
17. The petition is dismissed as withdrawn but subject to the petitioner depositing costs of Rs.25,000/- with the Delhi High Court Bar Association Lawyers‟ Social Security and Welfare Fund, New Delhi.
18. List on 14th September, 2017 for showing proof of payment of costs. RAJIV SAHAI ENDLAW, J.
SEPTEMBER12 2017 „pp‟ CM(M) 996/2017 Page 4 of 4