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2017 Supreme(Del) 1401
IN THE HIGH COURT OF DELHI AT NEW DELHI
GITA MITTAL, ANU MALHOTRA, JJ.
DR. N L VAISH AND ANR. – APPELLANT
VERSUS
VIRENDER BANSAL AND ORS. – RESPONDENTS
FAO(OS) 80 OF 2017
DECIDED ON : 11-05-2017
FOR THE APPELLANTS : MR. K. SUNIL, ADV.
FOR THE RESPONDENTS: MS. RACHNA AGRAWAL, ADV., MS. ANJALI CHOPRA, ADV.
The court can set aside costs imposed on a party if the party was prevented by sufficient cause from complying with the requirements of the law.
Headnote:
Medical Condition - Waiver of Costs - Order VII Rule XIV, Section 151 CPC - 30th August, 2016; 12th February, 2016; 6th February, 2017 - The court allowed the waiver of costs imposed on the appellant based on the medical condition brought out by the medical documents of the appellant.
Fact of the Case:
The appellants sought a decree of declaration and possession of a property. They filed an application for formal permission to bring on record documents as evidence, which was allowed subject to payment of costs. When the costs were not paid, further costs were imposed. An appeal was filed challenging the rejection of the waiver of costs, citing the appellant's medical condition.
Finding of the Court:
The court found that the medical documents showed irreversible damage to the appellant's brain, resulting in his inability to perform normal functions. The court held that the appellant was prevented by sufficient cause from taking the required steps, and therefore, set aside and quashed the direction to pay costs to the other side.
Issues: The main issue was the waiver of costs imposed on the appellant due to the appellant's medical condition.
Ratio Decidendi: The court considered the medical documents and found that the appellant's medical condition was a sufficient cause for not complying with the requirements of the law, leading to the decision to set aside and quash the direction to pay costs.
Final Decision: The appeal was allowed, and the direction to pay costs to the other side was set aside and quashed.
GITA MITTAL, J.
1. This appeal has been filed by the appellants assailing the order dated 6th February, 2017 passed in OA No. 15/2017 in CS(OS) 1215/2010, whereby the appellants’ have challenge to the order dated 6th January, 2017 passed by the Joint Registrar in CS(OS) 1215/2010 was rejected.
2. The facts giving rise to the present appeal are within a narrow campus. The appellants before us are plaintiffs in CS(OS) No. 1215/2010 where by the plaintiffs sought a decree of declaration and possession qua a property on the Alipur Road. The suit was at the stage of evidence before the Joint Registrar when, the appellants filed IA No.2512/2014 under Order VII Rule XIV with Section 151 CPC praying for formal permission to bring on record documents which had been filed along with their affidavit by way of evidence. This application was allowed by an order dated 12th February, 2016 subject to payment of costs of Rs.10,000/- to each of the defendants.
3. The case was then listed on 30th August, 2016 before the Joint Registrar for recording of evidence when previous costs had not been paid. No witness was produced and the plaintiffs’ counsel informed the Joint Registrar that an application would be moved for waiver of costs. Without bringing any documents in support, a plea was set up that the prime reason for non-production of the plaintiff no.1 as witness was his advanced age and ill health. The Joint Registrar consequently imposed further costs of Rs.10,000/- each in favour of the defendants.
4. Thereafter IA No. 15180/2016 was filed praying for waiver of costs which came to be rejected by the Joint Registrar by an order dated 6th January, 2017 for the same reason that no proof of medical treatment of PW-1 beyond February, 2015 had been shown.
5. An appeal assailing the order of the Joint Registrar being OA No. 15/2017 was filed. This appeal as taken up on 6th February, 2017 and rejected by the impugned order dated 6th February, 2017 holding that the appellants had failed to file any documents manifesting the continued illness of the witness beyond February, 2015.
6. Aggrieved thereby, the appellants have filed the present appeal challenging the order of the learned Single Judge dated 6th February, 2017.
7. In support of the appeal, it is contended by learned counsel for the appellant that the documents which were placed before the Joint Registrar show that the plaintiff no.1 had suffered a brain stroke and the supporting documents showed irreversible changes in the brain resulting in his being disabled from performing even normal functions. In this regard, the diagnosis effected on 29th January, 2015 showing that the plaintiff no.1 had suffered from "right MCA term, infarct with type II Diabetes Mellitus with Hyper tension with coronary artery disease with Benign Prostrate Hyper trophy.” This diagnosis is supported in the medical documents dated 27, 28 and 29th January, 2015 as well as the MRI and report dated 28th January, 2015. The report dated 28th January, 2015 given by the radiologist records the following diagnosis :
"There is well defined altered signal lesion measures approx 34x20 mm in size seen in the left fronto-parietal grey and white matter extending form periphery to the ventricular margin, shows hyper in tense signal over T2/FLAIR and DW images with reduced ADC value shows hypo in tense signal over T1 with images. There is no T1 hy perintense/T2* GRE hypo intense signals are seen : relatively recent onset non hemorrhagic infarct in left MCA territory. There are focal discrete T2/FLAIR hyper intensities seen in the right fronto-parietal subcortical white matter - ischemic lesions.
There are prominent Virchow Robin spaces seen in the basal ganglia capsular region. Mild Cerebral atrophic changes seen as dilated lateral ventricle and subarachnoid spaces. Cerebellum, brainstem and pituitary gland are normal. Third and fourth ventricles are normal in size, shape and position. No midline shift seen."
8. The appellant had pl
