IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA th ON THE 5 DAY OF JULY, 2022 BEFORE HON’BLE MR. JUSTICE VIVEK SINGH THAKUR CIVIL REVISION PETITION NO. 45 OF 2021 Between:-

SUNIL DUTT SHARMA (AGED ABOUT 47 YEARS) SON OF SH.S.R. SHARMA RESIDENT OF SHARMA NIWAS, DHANDA, POST OFFICE TOTU, TEHSIL & DISTRICT SHIMLA, H.P. …PETITIONER (BY M/S ALOK RANJAN SOOD & RAJIV RAI, ADVOCATES.)

AND VISHAL GHAI SON OF SH.SURJEET SINGH GHAI, RESIDENT OF KANEL WORTH KOTHI, H.NO. 2, NEAR KNH, SHIMLA, TEHSIL & DISTRICT SHIMLA, H.P. AT PRESENT R/O BHAGWATI NIWAS, SET NO. 6, NEW TOTU, NEAR MILK PLANT TOTU, TEHSIL & DISTRICT SHIMLA, H.P. …RESPONDENT (BY MR.AMAN CHAUDHARY, ADVOCATE VICE MR.PRATAP SINGH GOVERDHAN, ADVOCATE.)

Whether approved for reporting?

Reserved on: 27.6.2022 Decided on: 5.7.2022 This petition coming on for pronouncement this day, the Court passed the following:

O R D E R

Petitioner has approached this Court against the order dated

30.7.2021 passed by learned Additional District Judge-1, Shimla (for short ‘Trial Court’), in Civil Miscellaneous Petition No. 552 of 2020 in Counter Claim No. 2 of 2020 in Civil Suit No. 3 of 2020, titled as Vishal Ghai Vs. Sunil Dutt, whereby application filed by petitioner/defendant (hereinafter referred to as ‘defendant’) under Section 5 of Limitation Act alongwith Counter Claim, has been dismissed.

2. Parties herein, for convenience, shall be referred according to their status in the Civil Suit.

3. Plaintiff has filed a suit under Order 37 of Civil Procedure Code (for short CPC) for recovery of 23,64,000/- alongwith interest thereon. The suit was filed on 4.6.2020 during Covid-19 Pandemic period. It was registered on 7.7.2020 and a notice was issued to the defendant for 29.7.2020. On 29.7.2020, no party appeared due to Covid- 19 Pandemic and suit was ordered to be listed on 29.8.2020. On 29.8.2020 summon was issued to defendant for 25.9.2020. The said notice was served upon defendant on 5.9.2020 through ordinary course. Thereafter defendant has put in his appearance in trial Court through counsel Sh. Paresh Sharma, Advocate on 16.9.2020 by submitting/delivering a written statement/counter claim and two miscellaneous applications alongwith forwarding latter addressed to Superintendent Grade-II, of the Trial Court. Thereafter matter was listed in the Court on 25.9.2020 and it was recorded that written statement on behalf of defendant stands filed on 16.9.2020 alongwith Counter Claim, an application under Order 7 Rule 11 (d) CPC and application under Section 5 of Limitation Act for condonation of delay in filing Counter claim, and matter was adjourned for filing replication to the written statement and replies to the applications and was ordered to be listed on 2.11.2020. Thereafter for the same purpose suit was listed on 27.11.2020 and

12.1.2021.

4. On 12.1.2021, application under Order 7 Rule 11(d) CPC was withdrawn by the defendant with liberty to file afresh. Thereafter matter was listed on 8.3.2021 for filing reply to the application under Section 5 of the Limitation Act and rejoinder in the suit. Thereafter it was adjourned for 5.4.2021, 20.5.2021, 6.7.2021, 7.7.2021 and 12.7.2021. In the meanwhile an application under Section 151 CPC was also filed by the defendant for considering the suit as a regular suit for non compliance of Order 37 CPC by plaintiff and in alternate to treat the written statement and Counter Claim filed by defendant as request to leave to defend. The said application was also listed alongwith application under Section 5 of the Limitation Act for consideration on 12.7.2021 and various subsequent dates. Lastly, vide order dated 30.7.2021, application under Section 5 of the Limitation Act was dismissed being not maintainable and not in consonance with procedure referred in Order 37 sub Rule 5 of CPC. Another application, filed under Section 151 CPC, for considering written statement and Counter Claim as an application for leave to defend remained pending.

5. On 24.8.2021 defendant filed pre