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2022 Supreme(Del) 740
IN THE HIGH COURT OF DELHI AT NEW DELHI
C. HARI SHANKAR, J.
BHAGWAN DASS – Petitioner
Versus
VINITA – Respondent
C.M. (M) No. 243 of 2022, C.M. Application No. 13316 of 2022 (Stay)
Decided On : 28-03-2022
Advocate Appeared:
For the Petitioner: Mr. Om Prakash.
For the Respondents: Mr. Mohit Gupta, Ms. Shalu Rajput.
Point of Law: If there are bona-fide reasons, the mandate of Order XXXVII Rule 2 of the CPC, may not rigidly require incarceration.
Headnote:
Code of Civil Procedure, 1908 - Sections 55, 58, Order 21 Rules 37 and 38 and 151 - Suffering from stones in the gallbladder - Deceased decree holder undergone a surgery - Counsel for petitioner, submits that he was suffering from stones in gallbladder, for purpose of which he was submitting himself to repeated hospital treatments - He was hospitalized during period following which he had to undergo surgery - Decree holder had filed an application under Section 55 and 58 and Order 21 Rule 37 and 38 read with Section 151 CPC in court and copy of said application was supplied to counsel for legal heirs of deceased - Counsel for legal heirs of deceased judgment debtor who initially took treatment from a private doctor of locality but could not be recovered from illness, so, he attended emergency of - Discharged complete recovery from said hospital with an advice of reference to a centre with Oncology and GI Surgery - Copy of discharge summary issued by said Hospital is attached herewith - Counsel consulted Hospital - Counsel was again admitted Hospital and was discharged after operation but advised to come for Skin Staple removal after 10 days - counsel for legal heirs of deceased decree holder.
Finding of the Court:
Petitioner to be detained in civil prison, affects his life and liberty - Courts opinion that learned ARC ought to have accorded greater consideration to submissions contained in recall application - Sole ground that impugned order does not consider, grounds urged in application filed by petitioner for recall of order deem it appropriate, in the interests of justice, to set aside order - Court is not returning any finding on merits of the recall application or as to whether it makes out sufficient grounds for nonappearance of petitioner - Learned ARC is at liberty to take a decision in that regard on the basis of averments contained in recall application - Operation of the order shall remain stayed pending decision of the learned ARC on the recall application filed by petitioner.
Result: Petition is allowed.
JUDGMENT :
C. HARI SHANKAR, J.
1. This petition impugns orders dated 24th December, 2021 and 29th January, 2022, passed by the learned Additional Rent Controller (“learned ARC”) in Ex 1740/2017.
2. The petitioner was the judgment debtor before the learned ARC.
3. It is not necessary, for the limited purpose of disposing of this petition, to venture into factual details. Suffice it to state that, on 1st October, 2021, the following order was passed by the learned ARC:
“In view of order bearing no. 700/RG/DEIC/2021 dated 30.09.2021 of the Hon'ble High court, the present matter has been taken up for hearing today physically.
Present: Mr. Mohit Gupta, Ld. Counsel for the decree holder.
Mr. Durgesh Gupta, Ld. Proxy Counsel for the judgment debtors.
Ld. Counsel for the decree holder files his vakalatnama and submits that only one application remain pending in the present case which is under sections 55, 58, Order 21 Rules 37 and 38 and Section 151 of Code of Civil Procedure for arrest of the judgment debtor. He requests that notice of the application be issued.
Ld. Proxy Counsel for the judgment debtors submits that he is accepting notice of the application and that copy of the application be supplied to him.
Copy of the application is supplied to the Ld. Proxy Counsel for the judgment debtors.
To come up for arguments on the said application on 24.12.2021. Judgments debtors are directed to appear in person on the next date of hearing.”
4. Thereafter, the first order which is impugned in the present petition came to be passed on 24th December, 2021, which reads thus:
“Present: Ld. Counsel for the decree holder.
Ld. Proxy Counsel for the legal heirs of the judgment debtor.
Reply to the application for arrest of the legal heir of the judgment debtor has not been filed.
The said application is taken up for consideration.
It has been stated in the application that there are no asset of the legal heir which can be attached for execution of the decree.
It is prayed that Mr. Bhagwan Dass be arrested and be detained in Civil Prison.
Application is allowed.
On filing of PF and depositing subsisting allowance as per rules, issue warrants of arrest of Mr. Bhagwan Dass.
To come up before the undersigned for appointment of bailiff on 28.01.2022 and for report oh 25.02.2022.”
5. Mr. Om Prakash, learned Counsel for the petitioner, submits that he was suffering from stones in the gallbladder, for the purpose of which he was submitting himself to repeated hospital treatments and that, for the said ailment, he was hospitalized during the period 18th to 22nd November, 2021, 24th to 27th November, 2021, following which he had to undergo surgery on 21st December, 2021 and was subsequently discharged on 23rd December, 2021 from the Sir Ganga Ram Hospital.
6. Consequent to passing of the afore-extracted order dated 24th December, 2021, the petitioner filed an application seeking recall of the order dated 24th December, 2021 (“the recall application” hereinafter), Paras 3 to 5 of which read thus:
“3. That thereafter, the Decree holder had filed an application under Section 55 and 58 and Order 21 Rule 37 and 38 read with Section 151 CPC in the court and the copy of the said application was supplied to the counsel for the legal heirs of the deceased, judgment debtor on 01.10.2021 and the case was adjourned to 24.12.2021 for reply and argument on said application.
4. That the counsel for the legal heirs of the deceased judgment debtor namely Om Prakash Advocate, fell ill in the 3rd week of October 2021 who initially took treatment from a private doctor of the locality but could not be recovered from the illness, so, he attended the emergency of Dr. Ram Manohar Lohia Hospital, New Delhi on 26.10.2021 as OPD Patient, who was discharged him on same date after giving initial treatment. A copy of OPD registration card, dated 26.10.2021-of said Hospital is attached herewith. The said counsel also attended the St. Stephen Hospital as an outdoor patient on 03.11.2021 and again on 06.11.2021
