Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 733/2022 & CM APPL. 32797/2022, CM APPL.
32798/2022
RAJ RANI AND ANR ..... Petitioners
Through: Mr. Deepender Hooda and Mr.
Varun Hooda, Advs.
versus
SUMITRA PARASHAR AND ANR ..... Respondents
Through: None
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
% 28.07.2022
1. This writ petition, under Article 227 of the Constitution of
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India, assails order dated 10 December 2021, passed by the learned
Additional District Judge (“the learned ADJ”) in CS DJ ADJ
15466/2016 ( Raj Rani & Anr. v. Sumitra Parashar & Anr. ), which
reads as under:
“CS DJ ADJ 15466/16
RAJ RANI vs. SUMITRA PRASAR
10.12.2021
Present: Sh. Rahul Hans, Ld. Proxy Counsel for plaintiff.
Ms. Amrit Kaur, Ld. Counsel for defendant
along with defendant.
Fresh Vakalatnama has been filed on behalf of
plaintiff. Ld. Proxy Counsel for plaintiff requested for one
more opportunity to examine the witness stating that plaintiff
has engaged new Counsel recently. Request of the Ld.
Signature Not Verified
CM(M) 733/2022 Page 1 of 9
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:28.07.2022
18:24:00
Counsel for plaintiff is opposed by Ld. Counsel for defendant
stating that plaintiff is deliberately lingering on the matter. Ld.
Counsel for defendant also relied her objection upon the
judgment of Hon'ble Supreme Court of India in Civil Appeal
No. 7532 of 2011 titled as " Shiv Cotex Vs. Tirgun Auto Plast
Private Limited And Others. "
I have considered the submissions. Perusal of file
reveals that so many opportunities have already been granted
to plaintiff to complete PE. On previous date, the cost was
also imposed upon plaintiff for giving a last and final
opportunity but despite that neither cost has been paid not any
steps were taken by the plaintiff to lead PE. In view of facts
and circumstances and previous ordersheets. Court finds that
plaintiff is deliberately lingering on the matter and is not
interested to take steps to lead PE. Hence, PE is closed.
Defendant is directed to take appropriate steps to file
affidavit. Put up for DE on 13.01.2022.
In previous ordersheet, inadvertently DE was
mentioned instead of PE due to typographical error. Same is
corrected accordingly.
Sd./-
(Dr. Jagminder Singh)
ADJ-03 /South West
Dwarka/New Delhi
10.12.2021”
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2. Consequent to the direction issued by this Court on 27 July
2022, the entire order sheets, from the date when recording of
evidence commenced, have been handed over by learned Counsel for
the petitioners across the Bar. The same are taken on record.
3. The impugned order closes the right of the petitioner, as the
plaintiff in the suit before the learned ADJ, to lead further evidence,
on the ground that several opportunities had been granted to the
Signature Not Verified
CM(M) 733/2022 Page 2 of 9
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:28.07.2022
18:24:00
petitioner to complete the exercise of recording of PE.
4. It is not necessary to set out in detail the entire course of
proceedings before the learned ADJ, regarding recording of evidence
of the petitioner, as plaintiff.
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5. One may commence the recital from 20 February 2020, on
which date PW-2, Dheeraj Kumar, Record Keeper, from office of
Sub-Registrar-V, Mehrauli was examined, cross-examined and
discharged. Learned Counsel for the petitioner on the said date sought
an adjournment “for the remaining PE”. Learned Counsel for the
respondent raised an objection to the number of witnesses cited by the
petitioner. He submitted that the petitioner had furnished a list of 24
PWs, and that it was not necessary to examine all the PWs.
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6. On the next date of hearing, i.e. 26 February 2020, the
petitioner gave up twelve of the witnesses in his list and submitted that
he sought to lead evidence only of the witnesses at Serial Nos.
5,6,7,11,12,13,14,16 and 17, who were official witnesses. An
application for summoning the said official witnesses was tendered
and the petitioner was directed to take steps for summoning the
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aforesaid witnesses. The matter was re-notified for 23 March 2020.
7. Thereafter, the matter was adjourned on six occasions owing to
the intervention of COVID-19 pandemic. It was taken up, thereafter,
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on 25 March 2021.
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8. The order sheets of the proceeding, on and after 25 March
Signature Not Verified
CM(M) 733/2022 Page 3 of 9
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:28.07.2022
18:24:00
2021, read thus:
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Proceeding dated 25 March 2021
“CS DJ ADJ 515466/2016
Raj Rani Vs. Sumitra Prasar
CNR No. DLSWOl-000358-2016
25.03.2021
File taken up today on application moved on behalf of
plaintiff.
Present: Sh. Ravinder Kumar, Ld. Proxy Counsel for
plaintiff.
An application is moved on behalf of plaintiff for
summoning of the witness i.e. concerned official from
Syndicate Bank, INA Colony Branch, New Delhi and
concerned official from Central Bank of India, Kharkhoda
Branch, Sonipat, Haryana. Heard. In view of the facts
mentioned in the application, same is allowed. Let the
witnesses as mentioned in the application be summoned on
filing of PF/RC for next date already fixed i.e. 12.04.2021.
Diet money to the witnesses shall be given at the spot.”
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Proceeding dated 12 April 2021
“CS DJ ADJ 15466/16
RAJ RANI Vs. SUMITRAPRASAR
12.04.2021
Present: Sh. Siddharth Arora, Ld. Counsel for plaintiff.
Ms. Amrlt Kaur Oberoi, Ld. Counsel for defendant.
PW Sh.Srujeet Singh, Branch Manager, Canara Bank,
INA Branch, New Delhi previously known as Syndicate Bank
is appeared physically before Court and seeks time to trace
residence record. Heard. Time is granted. Put up for PE on
25.08.2021.”
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Proceeding dated 25 August 2021
Signature Not Verified
CM(M) 733/2022 Page 4 of 9
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:28.07.2022
18:24:00
“25.08.2021
Present: None for plaintiff.
Defendant no.2 in person.
Matter is at the stage of PE and same is also more than
5 years old. Hence, short date is given and court notice be
issued to plaintiff and put up for PE on 15.09.2021. Plaintiff
is further directed to take appropriate steps to call the
witnesses.”
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Proceeding dated 15 September 2021
“15.09.2021
Present: Sh. Gaurav Kumar proxy counsel for Sh. Laiit
Gupta for plaintiff.
Defendant No. 2 in person.
Ld. Presiding officer is on leave today.
Application for summoning of witnesses filed.
As per direction of Ld. Presiding Officer, matter be
adjourned for purpose already fixed/further proceeding on
30.09.2021.”
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Proceeding dated 30 September 2021
“30.09.2021
Matter is taken up through video conferencing via cisco
Webex.
Present: Sh. Siddharth Arora, Ld. counsel for plaintiff.
Ms. Amrit Kaur Oberoi, Ld. counsel for defendants.
Defendant no.2 is physically present in Court.
An application is moved on behalf of plaintiff for
summoning of witness. In view of the facts mentioned in the
application, same is allowed. Let witnesses as mentioned in
the application be summoned along with relevant record on
filing of PF for 29.10.2021.
Signature Not Verified
CM(M) 733/2022 Page 5 of 9
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:28.07.2022
18:24:00
Plaintiff is directed to take appropriate steps within
time to secure the presence of witnesses on next date of
hearing.”
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Proceeding dated 29 October 2021
“29.10.2021
Present: Sh. Priyansh, Ld. Proxy Counsel for plaintiff.
Ms. Amrit Kaur Oberoi, Ld. Counsel for defendant.
No PW is present. PW from Syndicate Bank is not
present despite service. Ld. Proxy counsel for plaintiff stated
that main counsel is not able to come today as he is suffering
from Dengue infection. Hence, at request, matter is adjourned
for PE for next date of hearing. Let formal witnesses
regarding record be summoned as 3-4 witnesses at a time on
filing of PF for 18.11.2021.”
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Proceeding dated 18 November 2021
“18.11.2021
Present: Sh. Vineet Dubey, Ld. Counsel for plaintiff
along with Ms. Ritika Manchanda.
Ms. Amrit Oberoi, Ld. Counsel for defendant.
No PW is present.
Fresh Vakalatnama has been filed on behalf of
plaintiff.
Ld. Counsel for plaintiff stated that he is engaged in
some other matter and seeks one more opportunity to summon
the witness. Ld. Counsel for defendant strongly opposed the
request stating that the plaintiff is deliberately lingering on the
matter and so many opportunities have already been granted
but plaintiff is not taking steps to summon all the witnesses
and therefore, requested to close the opportunity for pleading
witnesses.
In the interest of justice, last and final opportunity is
granted to comply the previous order and the cost of
Signature Not Verified
CM(M) 733/2022 Page 6 of 9
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:28.07.2022
18:24:00
Rs.5,000/- to be given to the opposite party.
Put up for PE on 10.12.2021.”
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9. Thereafter, on 10 December 2021, the impugned order came to
be passed.
10. A reading of the aforesaid orders reveals that opportunities for
filing of PF/RC, so that the official witnesses could be summoned,
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were granted on 26 February 2021, 25 March 2021, 25 August
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2021, 30 September 2021, 29 October 2021 and 18 November
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2021, before PE was closed on 10 December 2021.
11. In view of the aforesaid, it cannot be said that the decision of
the learned ADJ to close PE suffered from any irregular exercise of
jurisdiction or was otherwise perverse, so as to invite correction by
this Court in exercise of the superintending jurisdiction vested in it by
Article 227 of the Constitution of India which, as is well known, is
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limited and circumscribed.
12. No occasion, therefore, arises for this Court to grant any relief
to the petitioner under Article 227 of the Constitution of India.
13. Having said that, learned Counsel for the petitioner emphasises
the fact that as many as ten PWs remained to be examined and that, if
their entire evidence is left out, the case of the petitioner would be
1
Refer Sadhana Lodh v. National Insurance Co. Ltd ., (2003) 3 SCC 524 ; Estralla Rubber v.
Dass Estate (P) Ltd ., (2001) 8 SCC 97 ; Garment Craft v. Prakash Chand Goel , 2022 SCC
OnLine SC 29 ; Ibrat Faizan v. Omaxe Buildhome Private Limited , 2022 SCC OnLine SC 620 .
Signature Not Verified
CM(M) 733/2022 Page 7 of 9
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:28.07.2022
18:24:00
rendered completely futile. He, therefore, submits that his client is
willing to be put to terms if the evidence of the witnesses is directed to
be led.
14. He has also submitted that steps had, in fact, been taken by his
client in respect of the two of the official witnesses, pursuant to which,
one of the official witnesses at Serial No. 5 of Part-C of the list of
witnesses, tendered by his client, to which reference has been made in
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the impugned order dated 26 February 2020, had actually appeared
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on 12 April 2021.
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15. The direction by the learned ADJ, starting from 26 February
2020, was for the petitioner to take steps to summon all the remaining
official witnesses.
16. Undoubtedly, there has been recalcitrance and some degree of
negligence on the part of the petitioner in taking steps to summon the
official witnesses which is why, as already noted, this Court is not able
to provide succour to the petitioner under Article 227 of the
Constitution of India. Nonetheless, in view of the prejudice that the
petition may suffer if ten witnesses are left out, the petitioner is
permitted to move an appropriate application before the learned ADJ,
bringing the aforesaid facts to his notice and seeking permission to
lead the evidence of the remaining PWs.
17. Any such application, if advised, should be moved on the next
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date of haring i.e. 30 July 2022.
Signature Not Verified
CM(M) 733/2022 Page 8 of 9
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:28.07.2022
18:24:00
18. If any such application is moved, entire discretion is reserved
with the learned ADJ to take a decision thereon.
19. Needless to say, any such decision being taken would also deal
with the grounds urged by the petitioner for permission to adduce
evidence of the remaining witnesses.
20. This order is being passed only ex debito justitiae so as to
ensure that no miscarriage of justice takes place.
21. Reserving such limited liberty to the petitioner, this writ petition
stands disposed of.
Copy of the order be given dasti to learned Counsel for the
petitioner under the signature of the Court Master.
C. HARI SHANKAR, J.
JULY 28, 2022
dsn
Signature Not Verified
CM(M) 733/2022 Page 9 of 9
Digitally Signed
By:SUNIL SINGH NEGI
Signing Date:28.07.2022
18:24:00