KHARAITI LAL AND SONS Vs. HARI SINGH

JUDGEMENT

(1.) The applicant/defendant No. 1 raising the question of validity prays for constituting a large Bench (Full Bench) for striking down the nonobstante clause in Chapter X-A (Commissions) in the Delhi High Court (Original Side) Rules vide I.A. No. 875/97.

(2.) In order to appreciate the contention in this regard, it would be necessary to state few facts. Civil Suit No. 27/79 came to be filed by the plaintiff M/s. Kharaiti Lal & Sons against defendant No. 1-Hari Singh and others for the specific performance of agreement dated 9.9.1978 for the saleof immovable property. In the said suit, the plaintiff was cross-examined by defendant No. 1 on22.9.1989,6.11.1990,11.2.1993, 12.2.1993, 18.8.1993, 19.8.1993, 20.8.1993 and 3.9.1993. The order dated 3.9.1993 suggests that this Court found that no further opportunity should be granted to defendant No. 1 for further cross-examination of the plaintiff and the case was directed to be listed on 2.11.1994 to 4.11.1994 for the evidence of defendant No. 1. By IA. 12146/91, the defendant sought amendment in the issue. Vide order dated 7.4.1995 the application came to be dismissed observing that the proposed issue is partly covered intheorderdated20.11.1991 inl.A.8062/89whereastheremaining part of the proposed issue is included/covered in existing Issue No. 2. The order dated 3.9.1993 whereby further opportunity to cross-examine Public Witness Public Witness 2 was declined to defendant No. 1 was carried in Letters Patent Appeal No. 75/93 and C.M. 3276/ 94 and vide order dated 16.1.1995, D.B.-I of this Court dismissed the appeal as incompetent. On 9.5.1995, defendt No. 1 through his Counsel Mr. D.D. Singh prayed for adjournment and the matter was adjourned to 10.5.1995 on which date defendant No. 1 prayed for adjournment through his son, identified as such by Mr. D.D. Singh, Counsel for defendant No. 1. The matter was then adjourned to 15.5.1995 for evidence of defendant No. 1 and other witnesses, if any. On 15.5.1995, the evidence of defendant No. 1 was recorded in part and the case was adjourned to 8th November, 1995. On 8.11.1995 defendant No. 1 prayed for adjournment contending that he has pus formation in both the ears. Though the ground was found not sufficient for granting adjournment, one day's time was granted. On 9.11.1995, defendant No. 1 submitted a medical certificate through Mr. Gurdeep Singh. Considering the medical certificate, the request for adjournment was declined and the matter was ordered to come up on 10.11.1995 for remaining evidence of defendant No. 1. On 10.11.1995, Mr. Gurdeep Singh, son of defendant No. 1 produced the copy of medical certificate. Defendant No. 1 was directed to remain present on 13.11.1995. On 13.11.1995, Mr. Gurdeep Singh son of defendant No. I pointed out that according to the medical certificate dated 8.11.1995, defendant No. 1 was advised 7 days rest and computing 7 days from 8.11.1995, it would be 14.11.1995 hence defendant No. 1 was directed to remain present on 15.11.1995 for recording his further evidence. On 15.11.1995, Mr, A.K.Marwaha, Advocate was present for the plaintiff and Mr. Naubat Rai, Advocate for defendant No. 1 with defendant No. 1 remained present and following order came to be passed :

(3.) I would first consider I.A.875/97 praying for the appointment/constitution of the Larger Bench (Full Bench) for striking down the non-obstante clause in Chapter X-A of the DHC (OS) Rules. It is submitted by defendant No. 1 in person that Order XVIII Rule 4, Civil Procedure Code is not superseded by new rule in Chapter X-A of the DHC (OS) Rules; that Order XXVI, CPC is superseded; that Rule 4 of Order XIV is mandatory; that place of trial has to be the Court and the trial should be in the open Court; that DB-1 could not have sit inappeal against the order of previous D.B. that there is no default on the part of this applicant-defendant; that he did not participate before the Commissioner; that the question involved requires constitution of Larger Bench (Full Bench) to consider the constitutional validity of the new Rule.of Chapter X-A of DHC (OS) Rules. Asagainst this it is submitted by Mr. A.K. Marwaha,Counsel for the plaintiff that in view of the dismissal of I.A. 272/97 this I.A. i.e. I.A. 875/97 is not maintainable as relief in both the I.As. are the same.