$~15 * IN THE HIGH COURT OF DELHI AT NEW DELHI # CNR No. DLHC010304252022 + FAO 212/2022 NIDHI DUA & ANR .....Appellants Through: Mr. Sandeep Khurana, Mr. Shiven Khurana, Mr. Manjit Singh, Advocates for appellant no.1 with appellant no.1 in person. versus SANJEEV KUMAR WADHWA .....Respondent Through: Mr. Sidharth Mullick, Mr. Ritik Madan, Advocates. CORAM: HON'BLE MR. JUSTICE MANOJ KUMAR OHRI O R D E R % 29.09.2026 1. By way of the present appeal under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (hereinafter “CPC”), the appellants, who are the plaintiffs before the Trial Court, assail the order dated 23.12.2021 passed by the learned ADJ-06, West District, Tis Hazari Courts, Delhi in CS No. 1284/2017, whereby the application filed by the appellants under Order XXXIX Rule 10 CPC came to be dismissed. 2. Learned counsel appearing for the appellants submits that the impugned order proceeds on a factual premise which was not borne out from the record as it stood on the date of passing of the said order. It is submitted that, while dismissing the application under Order XXXIX Rule 10 CPC, the Trial Court has taken into consideration the Counter-Claim stated to have been filed by the respondent/defendant. Learned counsel submits that the This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/10/2026 at 15:13:22 respondent had filed an application under Order VI Rule 17 CPC seeking amendment of the Written Statement to bring the Counter-Claim on record, which application was still pending consideration when the impugned order came to be passed. It is, therefore, contended that the Counter-Claim having not come on record, the same could not have formed the basis for determining whether the respondent had made an unequivocal admission of his liability towards the amount of Rs.50,00,000/- admittedly received from the appellants. 3. This Court has heard learned counsel for the parties and perused the record. 4. Learned counsel appearing for the respondent does not dispute the aforesaid facts. 5. In view of the aforesaid position, this Court is of the view that the impugned order cannot be sustained. The Trial Court, while considering the application under Order XXXIX Rule 10 CPC, has, inter alia, proceeded on the basis of the Counter-Claim, despite the fact that the application seeking to take the said Counter-Claim on record was pending consideration. The application under Order XXXIX Rule 10 CPC therefore deserves to be considered afresh on the basis of the pleadings and material which were duly before the Trial Court and in accordance with law. 6. Accordingly, the impugned order dated 23.12.2021 is set aside and the matter is remanded back for the purpose that the application filed by the appellants under Order XXXIX Rule 10 CPC shall be considered afresh by the Trial Court and a reasoned order shall be passed thereon, after affording due opportunity to the parties. The said application be considered and This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/10/2026 at 15:13:22 disposed of as expeditiously as possible, preferably within a period of three months from the date of receipt of this order. 7. The appeal is disposed of in the above terms. MANOJ KUMAR OHRI, J SEPTEMBER 29, 2026/rd This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/10/2026 at 15:13:22