P S Krishnamurthy v. M/S Asian Paints (India) Ltd & ANR

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* IN THE HIGH COURT OF DELHI AT NEW DELHI + P S KRISHNAMURTHY ..... Petitioner Through:

Mr. Anil Kaushik with Mr. Abhishek Mishra, Advs.

versus ASIAN PAINTS (INDIA) LTD & ANR ..... Respondents Through:

None.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

O R D E R

% 13.07.2017 1.

This petition under Article 227 of the Constitution of India impugns the orders dated 5th February, 2013, 27th September, 2014 and 2nd April, 2016 (of the Civil Judge-02 (Central), Tis Hazari Courts, Delhi in Suit No.49/11) and seeks a direction to the Trial Court to first re-construct the judicial record before proceeding further with the suit. 2.

The petition was entertained and notice thereof ordered to be issued and the Trial Court record requisitioned.

3.

The Trial Court record has been received.

4.

Though the report of the Court Master under the order of 14th December, 2016 is to the effect that neither of the two respondents have been served but the counsel for the petitioner states that the respondents have been served.

5.

However considering the nature of the controversy, I do not deem it appropriate to serve the respondents even if they have not been served with the notice of this petition as yet.

6.

The counsel for the petitioner has been heard. 7.

The counsel for the petitioner has argued (i) that the petitioner / plaintiff had in the year 1993 instituted the suit from which this petition arises against the respondents no.1&2 namely Asian Paints (India) Ltd. and Victor Fernandes with respect to shares purchased by the petitioner / plaintiff of the respondent / defendant no.1 Asian Paint (India) Ltd.

dismissed vide impugned order dated 27th September, 2014; and, (xiii) the petitioner / plaintiff filed an application for review of the order dated 27th September, 2014 and which application for review was dismissed vide impugned order dated 2nd April, 2016.

8.

It is argued that the learned Civil Judge, without considering that without the suit file being re-constructed no proceeding can take place, has passed the impugned orders.

9.

I have perused the Trial Court record which has been requisitioned in this Court. A perusal thereof shows the suit file to have been already reconstructed. 10.

I have thus enquired from the counsel for the petitioner / plaintiff that once the suit file has already been re-constructed, why is the petitioner / plaintiff instead of proceeding to prove its case, wasting his time in filing misconceived applications and now in pursuing this petition. 11.

The counsel for the petitioner / plaintiff first stated that the file has not been re-constructed. However on being asked as to what is missing from the file as is before this Court, he states that nothing is missing and the entire file has been re-constructed. He however states that the file has not been "formally re-constructed". He also states that there is no original plaint. 12.

It is not as if the Trial Court has in any way stopped the petitioner / plaintiff from proceeding with his ex parte evidence owing to there being no "formal order" of re-construction. The insistence of the counsel for the petitioner / plaintiffs on a "formal order" of re-construction is not only misconceived but to the prejudice of the petitioner / plaintiff himself whose claim has been kept pending for long. A perusal of the order sheet of the

Trial Court record shows that on 6th July, 2013 the petitioner / plaintiff sought time for re-construction of the file; on 17th August, 2013 the counsel for the petitioner / plaintiff filed documents for re-construction of the file. It appears that in pursuance thereto the entire file has been re-constructed and according to the counsel for the petitioner / plaintiff also nothing is missing therefrom now.

13.

The petitioner / plaintiff still refuses to proceed with the suit. 14.

The petition is disposed of observing (i) that once it is on record of the Trial Court that the original file has been weeded out; (ii) in pursuance to the order aforesaid the petitioner / plaintiff has been permitted to re-construct the file and the file has so been re-constructed, the petitioner / plaintiff to proceed with leading his ex parte evidence to prove his case. 15.

I am refraining from imposing costs on the petitioner / plaintiff. 16.

The Trial Court record which was requisitioned be returned forthwith. RAJIV SAHAI ENDLAW, J JULY 13, 2017 „pp‟..