Shri Vikas Aggarwal vs Ms Tripta Mehra
2005 Latest Caselaw 692 Del

JUDGMENT

Mukul Mudgal, J.

1. This petition under Article 227 of the Constitution of India challenges the order dated 7th April 2005 declining the petitioner defendant's application under Order XVI Rule 1(3) read with Section 151 of the Civil Procedure Code for leading additional evidence. The case set up in the application is that due to the mistake of the previous counsel list of of important witnesess were not included in the list of witnesses earlier filed by the defendant inter alia averring that the plaintiff's in collusion with M/s Sharma and Associates had precluded and manipulated a notice dated 20th April 1999 and allegation has also been made of connivance by Shri R.K. Tandon and Karan Bal with the plaintiff by signing the lease deed dated 7th January 1994. The aforesaid plea was vehemently opposed by the respondent contending that the application is misuse of the process of the Court and defendants' evidence was closed by an order dated 18th August 2004 and the challenge to that order was made in the High Court by the petitioner and the High Court dismissed CM No. 1584 of 2004 by its order dated 23rd November 2004. The application has been filed by concealing the order of the High Court and provisions of Section 16(1)(3) read with Section 151 of the Code are not applicable as the evidence of the defendant had already been closed and in fact on 1st July 2004 the defendant's counsel made a statement that he does not want to examine any witness except DW 3.

2. Having heard the learned counsel for the parties, I am of the view that :

a) on 1st July 2004 the following statement was recorded on behalf of the petitioner/ respondent;

"01.07.2004

Pre. Sh. M.P.S. Kasana, Cl for Pltf., along with Pltf., in person Sh. RS Verma, C.I., for Deft., along with Sh. Arun Aggarwal, Brother of deft.

Adjournment requested by the CI for Deft. As DW3 is not present it is also stated by the CL., for Deft., that wife of DW3 has met an accident. Adjournment strictly opposed by the Cl. For Pltf. Rent of Rs. 3750/- given to the Pltf. It is stated by the Counsel for the defendant that he does not want to examine any other witness except DW3. Last and final opportunity is granted to the Cl., for deft., for recording the statement of DW3. Put up on 23.07.2004."

Thus the petitioner himself as far back as on 1st July 2004 had made a statement that no witness except DW 3 is to be examined by him. He can not contend now to the contrary to assert that notwithstanding his statement on 1st July 2004 he should be allowed to examine additional witness by resorting to an application under Order XVI Rule 1(3) of the Code.

b) On 23rd November 2004 a learned Single Judge of this Court had observed in a challenge to the order dated 18th August 2004 closing the evidence of the defendants follows:.

"The petitioner is aggrieved by an order dated 18th August, 2004 and 27th October, 2004.

"The petitioner is aggrieved by an order dated 18th August, 2004 and 27th October, 2004.

By the first impugned Order, the evidence of the defendant was closed and by the second impugned order, an application seeking a review of the first impugned order was dismissed.

It appears that as many as four opportunities were given for production of DW-3 but he was not produced. On 1st July, 2004, a last and final opportunity was granted for recording the statement of DW-3 and the matter was adjourned to 23rd July, 2004. On that date also, the witness was not present. Nevertheless, an adjournment was granted on payment of costs and the matter was fixed for 18th August, 2004. On that date again, the witness was not present.

Under these circumstances, the learned Trial Judge closed the evidence of the defendant and fixed the matter for arguments for 27th September, 2004.

Adequate opportunities have been given to the Petitioner to produce DW-3 including a last and final opportunity. Notwithstanding this, a further opportunity was given but even that was not availed of. The conduct of the Petitioner does not require any exercise of discretion in his favor."

Adequate opportunities have been given to the Petitioner to produce DW-3 including a last and final opportunity. Notwithstanding this, a further opportunity was given but even that was not availed of. The conduct of the Petitioner does not require any exercise of discretion in his favor.

The above order though passed in the context of the testimony of DW 3 nevertheless reflects on the conduct of the defendant/ tenant who in a suit for eviction filed in 1989 is obviously not over eager for an expeditious disposal of the suit since he continues to be in possession;

c) The learned Civil Judge also noticed that the petitioner had availed of as many as 8 opportunities to lead his evidence and had not mentioned the order of the learned Single Judge dismissing his earlier petition in his application under Order XVI Rule 1 of the Civil Procedure Code.

d) The learned senior counsel for the petitioner, Shri A.S. Chandhiok, relied upon the judgment of the Karnataka High Court in Smt. Yasodamma and Anr. v. Inderchand Vimalchand Jain and Anr. reported as AIR 1974 Karnatak 100 where it was held that in an application under Order XVI Rule 1 unless the court holds that the application lack bona fides it should not refuse to issue summonses. The above judgment would not apply to the facts of the present case because in light of the conduct of the defendant as noticed even by a learned single Judge of this Court and the statement made by the petitioner himself on 1st July 2004 stating that he did nowt wish to examine any other witness except DW 3, the defendant's/petitioner's application under Order XVI Rule 1 was clearly lacking in bona fides.

3. In this view of the matter there is no merit in the petition and the same is accordingly dismissed with no order as to costs. All the pending applications, also stand disposed of.