Jagannath Chauhan vs S.C. Nanda And Anr.
2003 Latest Caselaw 472 Del

JUDGMENT

Khan, J.

1. Admit. Notice accepted by Mr. Vikas Dhawan for respondent. This appeal is also taken up for disposal in view of the disposal of two other connected appeals between the parties on the subject matter. It is directed against impugned order dated 4.3.2003 doing away with appellant's (defendant) evidence and directing the posting of R-1's suit for final disposal on the pleadings of the parties.

2. Contesting parties are Advocates and are involved in a do or die fight over a flat at Patpar Ganj belonging to R-1. Both seem to have been working together at one stage but having fallen out later. Both have their own story to tell over-stretching the process of this court in the process. Appellant claims that he was working on the revenue side and had conducted some investigation and done some drafting for R-1 for which he was entitled to a fee of Rs. 15,26,900/- till December 1996 by him. In lieu thereof, R-1 made an oral agreement to sell the flat to him for Rs. 6 lacs. He handed over its possession to him and adjusted this amount against his fee claim leaving behind an outstanding of Rs. 9,26,900/-.

3. R-1 has a different story to tell. According to him, appellant was working with him as his junior since 1992. He was permitted to stay in the flat (suit premises) along with his family in 1996 because of the professional relationship between them. He was later asked to vacate the premises and was served a notice for this in 1998 and was asked to pay mesne profits of Rs. 5,000/- per month along with 25% interest. On his failure to do so, suit No.1762/98 was filed against him for recovery of possession and mesne profits in retaliation of which Appellant filed two counter Suit Nos.547 and 2831/99 against R-1 - one for specific performance and the other for recovery of Rs. 9,26,900/-.

4. It appears that out of the three suits, R-1's suit No. 1762/98 for recovery of possession of the flat was decreed by judgment under Order 12 Rule 6 on 24.3.2000. This decree was set aside in Appellant's RFA 24/2000 and the suit was remanded for trial vide judgment dated 27.9.2000 by the Division Bench. It was also directed that the three suits, two by the appellant and one by R-1 be consolidated and tried together. R-1 took appeal against this to Supreme Court which was dismissed by order dated 12.4.2001 while directing this Court to dispose of R-1's suit within six months from the date of order. All the three suits were later consolidated by court order dated 23.10.2002 and parties were directed to lead evidence before the local commissioner. Eight weeks time was granted to them for filing affidavits by order dated 22.7.2002 in response whereto R-1 filed affidavits of his evidence on 23.9.2002. He also appeared as his own witness (PW-2) and was subjected to prolonged cross-examination by appellant (defendant) on several dates. Meanwhile, efforts were also made to bring the parties together for a compromise which failed. It was in this conspectus Ld. Trial Judge passed order dated 4.3.2003 directing disposal of the suit on the basis of the pleadings of the parties in the facts and circumstances of the case.

5. Appellant's main grievance is that Ld. Trial Judge had taken away his right of leading his defense evidence in R-1's suit. It is also his case that the suit could not be decided on the basis of pleadings along after it was remanded for trial by the Division Bench in RFA 24/2000.

6. The impugned order is justified by R-1's counsel Mr. Kapoor. According to him, Ld. Trial Judge was within his competence to pass this order under Order 17 Rule 3 of CPC in the context of Appellant's (Defendant) conduct who was prolonging the adjudication on one pretext or the other and was in reality guilty of abuse of the process of the court subjecting R-1 to a frivolous and vexatious trial. He pointed out to the nature of the counter suits filed by Appellant and his failure to lead evidence in these which was aimed at defeating R-1's cause and to perpetuate the occupation of his flat. He also invited our attention to a series of orders passed by the court and the local commissioner to charge Appellant of the dilatory tactics to achieve his object of retaining the possession of the suit flat for nothing.

7. Even if Mr. Kapoor's version was accepted, we still find the impugned order falling short of requirement. After all a plaintiff has a right to prove his suit by whatever evidence. His right could not be taken without affording him an opportunity to exercise it. If he fails to exercise after he was given the option or defaults in performance of any other act which was necessary for adjudication of the suit, the court enjoys the power to decide the suit in view of his default. The exercise of power by the court in such a case springs from the party's default and is covered by the provisions of Order 17 Rule 3. The relevant provision reads:-

"3. Court may proceed notwithstanding either party fails to produce evidence - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, -

(a) if the parties are present, proceed to decide the suit forthwith, or

(b) if the parties are, of any of them is, absent, proceed under rule 2."

8. The terms of this provision are simple and plain. It becomes operative only in a situation where parties have failed to produce evidence after time was granted to them to do so. It is so because parties have a value right to prove their case by leading evidence. This right can't be taken away by the court save otherwise in case of their failure to do so and such failure was required to be recorded in the order leading to the closure of evidence. It is only then that the court can proceed to decide the suit after doing away with the evidence of parties. The court, by no stretch of imagination, therefore, could decide the suit straight away without affording the parties a chance to lead the evidence and discarding their evidence. It is not that the court is powerless to decide a suit without evidence. It enjoys this power where a claim is admitted under Order 12 Rule 6 CPC.

9. In the present case, there was nothing in the impugned order to show that court had granted Appellant time to lead evidence or that he had defaulted. It may as well be that appellant was guilty of prolonging the proceedings and delaying the decision of the suit but that was required to be reflected and dealt with in the order to suggest that his evidence required to be closed and the suit required to be decided without evidence. The impugned order is bereft of all this and, therefore, does not satisfy the requirements of Order 17 Rule 3. It can't also be sustained in reference to any other provision. It, therefore, becomes unsustainable and is set aside. However, to curb appellant's alleged design to prolong the adjudication and to ensure speedy disposal of the suit, he is granted one week's time to conclude cross-examination, if any of PWs and two weeks time thereafter to file his evidence by way of affidavits. R-1 shall then have one week to cross examine any DW's. In case of default, appellants evidence shall be deemed closed. Mr. Valmiki Mehta, Senior Advocate is appointed as local commissioner for recording evidence. He shall be paid a fee of Rs. 10,000/- by appellant.