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2017 Supreme(Del) 4394
IN THE HIGH COURT OF DELHI AT NEW DELHI
GITA MITTAL, C. HARI SHANKAR, JJ.
Micromax Informatics Ltd. - Appellant
Versus
Vijay Jain & Ors. - Respondents
FAO (OS) 310 of 2017
Decided On : 13-12-2017
Advocate Appeared:
For the Appellant : Mr. Jayant Mehta, Ms. Snigdha Sharma, Ms. Ritwik Sneha, Mr. Shaurya Kuthiala
For the Respondents: Mr. C.M. Lall, Ms. Archana Sahadeva, Mr. Nikhil Lal, Mr. R. Behl
The main legal point established in the judgment is the interpretation and applicability of the provisions of Order XVIII Rule 1 & 2 of the Code of Civil Procedure, as well as the maintainability of the appeal under Section 13 of the Commercial Courts Act.
Headnote:
Order XVIII - Filing of Evidence - Rule 1, Rule 2, Rule 6A - The court discussed the provisions of Order XVIII Rule 1 & 2 of the Code of Civil Procedure, as well as Order VIII Rule 6A of CPC. The court also considered the maintainability of the appeal under Section 13 of the Commercial Courts Act and the applicability of Section 10 of the Delhi High Court Act, 1966.
Fact of the Case:
The appellant challenges the order directing both parties to file their evidences by way of affidavits simultaneously, citing provisions of Order XVIII Rule 1 & 2 of the Code of Civil Procedure.
Finding of the Court:
The court found the appeal not maintainable under Section 13 of the Commercial Courts Act, dismissing it on that basis.
Issues: The primary issue was the maintainability of the appeal under Section 13 of the Commercial Courts Act and the applicability of Section 10 of the Delhi High Court Act, 1966.
Ratio Decidendi: The court held that the appeal was not maintainable under Section 13 of the Commercial Courts Act, as the subject matter of the suit fell within the definition of a 'commercial dispute'.
Final Decision: The appeal was dismissed as not maintainable, with the court clarifying that it had not expressed any opinion on the merits of the rival contentions.
Gita Mittal, J.
CM Nos.45022-23/2017 (for exemptions)
Allowed, subject to all just exceptions.
CMs stand disposed of.
FAO(OS) No.310/2017
1. The appellant before us (defendant in suit) assails the order dated 15th November, 2017 passed in CS(OS) No.1831/2015 & CC No.102/2015 whereby the ld. Single Judge has directed both the parties to the suit to file their evidences by way of affidavits simultaneously within a further period of four weeks therefrom.
2. The primary ground of challenge on behalf of the appellant is that the filing of evidence by way of affidavits should first begin with the respondents/plaintiffs and therefore, the appellant could not have been called upon to file its evidence prior to the closure of the evidence of the respondents herein. The appellant has relied upon the provisions of Order XVIII Rule 1 & 2 of the Code of Civil Procedure which reads as under:
“1. Right to begin.- The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.
2. Statement and production of evidence.-
(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
(3A) Any party may address oral arguments in a case, and shall before he concludes the oral arguments, if any, submit if the Court so permit concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record.
(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing considers it necessary to grand such adjournment.
(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.” (Emphasis supplied)
3. It is submitted by Mr. Mehta that so far as hearing of the suit and the examination of the witnesses are concerned, the same have to be abide by Order XVIII Rule 1 and 2 of CPC which mandates that “the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief which he seems, in which case the defendant has the right to begin.”
Mr. Mehta would submit that it is not the respondents’ case before us that the provisions of Rule 1 of Order XVIII, CPC are satisfied.
4. So far as statement and production of evidence is concerned, Mr. Mehta contends that Rule 2 of Order XVIII categorically states that “on the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to being shall state his case and produce his evidence in support of the issues which he is bound to prove.” It is urged that sub-rule (2) of Rule 2 of Order XVIII clearly stipulates the manner in which the “other” party would proceed and states that “the other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.”
5. On behalf of the appellant, reference is made to an order dated 22nd July, 2016 passed in the suit and counter claim framing issues wherein out of the 10 issues framed, onus of 9 issues is placed on the plaintiff, submitting that a situation may very well arise
