Full Judgment Text
Neutral Citation Number 2023/DHC/001041
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13.02.2023
+ CM(M) 228/2023
KRISHAN DAYAL SHARMA ..... Petitioner
versus
ANITA KAUSHIK ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Siddharth Aggarwal, Advocate.
For the Respondent : None
CORAM:
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
TUSHAR RAO GEDELA, J. (ORAL)
[ The proceeding has been conducted through Hybrid mode ]
CM APPL. 6843/2023 (Exemption)
1. This is an application seeking exemption from filing legible
copies of the annexures.
2. Exemption is allowed, subject to all just exceptions.
3. The application stands disposed of.
CM(M) 228/2023, CM APPL.6842/2023 & CM APPL. 6844/2023
4. The petitioner challenges the order dated 14.12.2022 passed by
learned Trial Court in CS DJ 8725/2016 titled ‘ Anita Kaushik vs
Krishan Dayal Sharma & Ors ’ whereby learned Trial Court had
recorded the evidence of D3W1- Sh. Bal Krishan Sharma and closed DE
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
Signing Date:14.02.2023
15:11:01
CM(M) 228/2023 Page 1 of 3
Neutral Citation Number 2023/DHC/001041
on behalf of respondent no.4/defendant no.3 herein and fixed the matter
for recording evidence of the respondent no.1/plaintiff.
5. Learned counsel appearing for petitioner/defendant no.1 submits
that this being a partition suit, petitioner/defendant no.1 had sought an
opportunity to cross-examine D3W1- Sh. Bal Krishan Sharma, by way
of an application under Section 151 of CPC, 1908
6. Learned counsel submits that despite having filed the aforesaid
application, learned Trial Court neither afforded an opportunity to the
petitioner to cross-examine D3W1 nor did it pass any orders on the said
application as filed by the petitioner/defendant no.1.
7. Learned counsel submits that advance notice of the present
petition was effected upon respondents no.1, 4 and 5. However, there is
no appearance on behalf of either of the aforesaid respondents despite
advance notice.
8. This Court proceeds to dispose of the petition in accordance with
Delhi High Court Circular No. 69/Rules/DHC dated 05.12.2019.
9. Upon examination of the application and other documents placed
on record by the petitioner/defendant no.1, it is clear that not only the
suit pending before the learned Trial Court is one seeking partition, but
also the categorical assertion has been made by petitioner/defendant
no.1 that the petitioner alone is contesting the partition suit and all
others are supporting the respondent no.1/plaintiff.
10. It is clear from the above that the deprivation of the chance to
cross-examine D3W1 namely Sh. Bal Krishan Sharma whose evidence
was recorded and closed vide the impugned order would be a material
witness so far as the petitioner/defendant no.1 is concerned. Such
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
Signing Date:14.02.2023
15:11:01
CM(M) 228/2023 Page 2 of 3
Neutral Citation Number 2023/DHC/001041
deprivation is contrary to the principles of fair play and justice and the
petitioner ought to be afforded an opportunity to cross-examine such
witness.
11. Since an application under Section 151 of CPC, 1908 seeking a
similar relief is already pending before the learned Trial Court, this
Court defers passing any orders in the present petition, directing the
learned Trial Court to take up the application under Section 151 of CPC,
1908 filed on behalf of the petitioner/defendant no.1 on the next date of
hearing, i.e. 14.02.2023 when the learned Trial Court is stated to be
considering respondent no.1/plaintiff’s evidence.
12. Learned Trial Court is directed to first take into consideration the
application under Section 151 of CPC, 1908 before proceeding with
respondent no.1/plaintiff’s evidence and dispose of the application in
accordance with law. It would be well for the learned Trial Court to
hear the application on its own merits and decide it in accordance with
law after giving due opportunity to both the sides.
13. In view of the aforesaid terms, the petition stands disposed of.
14. Pending application also stands disposed of.
15. Copy of this order be given dasti under signatures of Court
Master.
TUSHAR RAO GEDELA, J.
FEBRUARY 13, 2023
Aj
Signature Not Verified
Digitally Signed
By:VINOD KUMAR
Signing Date:14.02.2023
15:11:01
CM(M) 228/2023 Page 3 of 3