N.K. Tomar vs M/S. Viraj Impex Limited
2008 Latest Caselaw 1425 Del

                            Unreportable
*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+             FAO (OS) No. 44/2008 & CM No. 9683/2008

%                                                Pronounced on : August 22, 2008

N.K. Tomar                                                  . . . Appellant

                   through :                     Mr. Azhar Qayam Butt, Advocate

             VERSUS

M/s. Viraj Impex Ltd.                                       . . . Respondent

                   through :                     Mr. S.P. Jha, Advocate


CORAM :-
    THE HON‟BLE MR. JUSTICE A.K. SIKRI
    THE HON‟BLE MR. JUSTICE MANMOHAN SINGH

      1.     Whether Reporters of Local newspapers may be allowed
             to see the Judgment?
      2.     To be referred to the Reporter or not?
      3.     Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.      (ORAL)

1. CM No. 9683/2008

The appellant herein filed suit for recovery of money, which

has been dismissed by the learned Single Judge on the ground that

despite opportunities, no evidence was led by the appellant/plaintiff.

Challenging the same the appellant has filed FAO (OS) under Order

XLIII of the Civil Procedure Code, 1908 read with Section X of the

Delhi High Court Act. When the matter came up on an earlier

occasion, learned counsel for the respondent raised objection to the

maintainability of the appeal on the ground that the appeal is not

against an „order‟ but against „final judgment and decree‟ and,

therefore, only Regular First Appeal is maintainable. Under these

circumstances, the appellant has filed this application for converting

the said FAO into RFA. Requisite court fee has also been filed, which

is payable in the appeal. In view of the aforesaid, we permit this

application. This FAO (OS) shall be treated as RFA (OS) and shall be

assigned appropriate number by the Registry.

This application is disposed of accordingly.

2. FAO (OS) No. 44/2008

The appellant herein (referred as the „plaintiff‟ hereafter) had

filed CS (OS) No. 22/1999 for recovery of Rs.22 lacs along with

interest and costs against the respondent herein. In the plaint it was

alleged by the plaintiff that he had paid certain amounts as advance

towards negotiations in respect of purchase of agricultural land

situated at village Kapashera, Delhi. According to the plaintiff, a sum

of Rs.2 lacs was given on 16.8.1995 vide DD and further sum of

Rs.20 lacs was paid to the defendant (respondent herein) on

1.1.1996, which was a payment made through cheque. It was further

alleged that the negotiations ultimately did not fructify and deal

failed through because of which the defendant became liable for

refund of the said amount of Rs.22 lacs. On these averments, the suit

for recovery of the said amount, along with interest and costs, was

filed on 4.1.1999.

3. In the written statement filed by the defendant, receipt of the

aforesaid amount of Rs.22 lacs is admitted. It was also admitted that

the amount was paid in respect of purchase of agricultural land

situated at Village Kapashera, Delhi, for which negotiations were held

between the parties. However, the defence of the defendant was

that it is the plaintiff who did not come forward by making balance

payment in respect of the said deal and because of this reason, the

amount of Rs.22 lacs was forfeited. Some preliminary objections to

the maintainability of the suit as well as limitation etc. were also

taken by the defendant and keeping in view the pleadings of the

parties, following issues were framed on 12.1.2005 :-

"1. Whether the suit filed by the plaintiff is maintainable, in view of the preliminary objection raised in para 2 of the written statement? OPD

2. Whether the suit is barred by limitation, as pleaded in the written statement? OPD

3. Whether the suit is bad for misjoinder of the cause of action? OPD

4. Whether the time was essence of the alleged contract and the defendant was entitled to forfeit the earnest money? OPD

5. Whether M/s. Chintoo creation (partnership firm of plaintiff) was under the obligation to obtain NOC from the competent authority to transfer the suit property in favour of the above mentioned partnership firm? OPD

6. Whether the plaintiff is entitled for a decree of Rs.22 lacs against the defendant? OPP

7. Whether the plaintiff is entitled to interest, if any, at what rate? OPP

8. Relief."

4. After framing of the issues, the plaintiff was directed to lead evidence

by filing the affidavits. These affidavits were filed only on 11.11.2005,

i.e. after a gap of about 10 months and seeking few opportunities for

this purpose. As per the learned Single Judge, the plaintiff thereafter

did not take proper steps for getting the witnesses examined. The

affidavits of evidence were to be filed within two weeks, which were

not filed. Last opportunity was granted on 1.3.2005. Still evidence

was not filed and on 12.5.2005 another counsel appeared for the

plaintiff and on his submission that he was engaged recently, further

time was granted to file the evidence, which was ultimately filed on

11.11.2005, as stated above, that too when on 29.9.2005 last

opportunity was granted, subject to costs of Rs.10,000/-. Matter was

thereafter adjourned from time to time for cross-examination of

plaintiff‟s witnesses and the proceedings took place during this period

are noted as under by the learned Single Judge :-

"It is at that stage that the second saga of adjournments started commencing from proceedings of 16.1.2006 when the plaintiff‟s witness was not present and the counsel appearing for the plaintiff stated that he had not called the witness as the counsel for the defendant had given him a message that he was not going to cross examine the witness that day. The matter was re-notified for 31.05.2006 and was taken at 2PM at the request of the learned counsel for the parties when also no witness was present and it was stated that the sole witness of the plaintiff was suffering from fever though no medical certificate was placed on record. The matter was re-notified for 19.09.2006 when again plaintiff appeared in person and requested for an adjournment on the ground that the counsel had not come The adjournment was granted subject to deposit of costs of Rs.3,000/-. The matter was re-notified on 14.12.2006 as a last opportunity to cross examine the witness. On 14.12.2006, it was found that neither the costs had been deposited nor witness of the plaintiff was present and once again the excuse given was that the witness was not well. The matter was re-notified on 28.03.2007.

On 28.03.2007 in the proceedings before the Joint Registrar, witness of the plaintiff did not turn up till 3 PM though the costs had been paid. Further opportunity was granted and the matter was re-notified for 14.08.2007. On 14.08.2007, none appeared for the plaintiff when the matter was called and the matter was directed to be taken up at 12.30 PM. At 12.30 PM, a proxy counsel appeared for the plaintiff

but no witness of the plaintiff was present and once again an adjournment was sought on the ground that the witness could not appear on account of his illness. The adjournment was opposed and in view of the conduct of the plaintiff noticed above, the matter has been placed before the Court today."

5. Under these circumstances when the matter came up before the

Court on 31.10.2007, the learned Single Judge was forced to close

the evidence of the plaintiff observing that the plaintiff did not take

any proper steps for pursuing his suit and a negligent litigant could

not be permitted to clog the heavy calendar of the Court. After

refusing to grant any further opportunity to the plaintiff, the last para

of the order dated 31.10.2007 discloses the manner in which suit of

the plaintiff was dismissed:

"Since the burden of proving the issue would be on the plaintiff and the plaintiff has failed to lead evidence, no purpose would be served in calling upon the defendant to produce evidence. Plaintiff having not established its case, there is no option but to dismiss the suit with costs. Ordered accordingly."

6. Learned counsel for the appellant/plaintiff argued that no doubt

there was some delay in filing the evidence by way of affidavits.

However, after the affidavits were filed on 11.11.2005, the conduct of

the plaintiff was not so blemish which could have entailed forfeiture

of his right to lead evidence. In this behalf it was submitted that after

the filing of the affidavits, first date for recording the cross-

examination was 14.11.2005 and on this date the plaintiff was

present and available for cross-examination. However, the affidavit

of evidence of the defendant was not on record and it was because

of this reason that the matter was adjourned to 16.1.2006. On

16.1.2006, no doubt the witness of the plaintiff was not present.

However, the reason was that counsel for the defendant had given

advance intimation to the plaintiff‟s counsel that he would not be

cross-examining the witness of the plaintiff on that date and in view

of this advance intimation, the plaintiff had not appeared in the

Court. The order dated 16.1.2006 corroborates this submission of

plaintiff‟s counsel which, inter alia, records as follows: "No PW

present. Learned counsel for the plaintiff submits that he has not

called the witness as learned counsel has given a message that he is

not going to cross-examine the witness today". On the next date,

i.e. on 31.5.2006, witness was not present as he was suffering from

fever, which fact was recorded in the order dated 31.5.2006.

Thereafter, on 19.9.2006, the plaintiff was present. However, on

that date his counsel was not available and because of this reason

matter was adjourned. On 14.12.2006, the witness was not present

again on the ground that he was ill. In these circumstances, matter

was adjourned to 28.3.2007. On that date also witness of the

plaintiff was not present and last opportunity was given, while

adjourning the matter to 14.8.2007. On 14.8.2007, again no witness

of the plaintiff was present and as costs was also not paid, matter

was listed before the Court on 31.10.2007, on which date the

learned Single Judge passed the impugned order.

7. It cannot be disputed from the aforesaid that though on some

occasion there were valid reasons for not producing the witness,

namely, sickness or the request of the defendant‟s counsel, but it is

also clear from the aforesaid narration of events that at least from

19.9.2006 it is the plaintiff who is to be squarely blamed for not

appearing and making himself or his witness available for cross-

examination. This happened even when last opportunity was

granted, which was not availed of, and even costs imposed were not

paid. In these circumstances, normally, one would not have

interfered with the orders passed by the learned Single Judge.

However, the problem which has arisen in this case is on an

altogether different front. We have already extracted the last para

of the orders dated 31.10.2007 as per which the suit is dismissed after

recording that burden of proving the issues was on the plaintiff and

as the plaintiff had failed to lead evidence, the Court had no option

but to dismiss the suit. This observation of the learned Single Judge

that burden of proving the issues was on the plaintiff is not entirely

correct. We have already reproduced the issues from which it can be

seen that burden of proving Issue Nos. 1 to 5 was on the defendant.

Reason is simple. Insofar as the plaintiff is concerned, his averment

that he had given advance payment of Rs.22 lacs to the defendant

has been admitted by the defendant in its written statement.

Therefore, it is the plea of the defendant in the case set up by him

which he was supposed to prove, on which Issue Nos. 1 to 5 were

framed, and onus was also laid upon him prove those issues. The

learned Single Judge ignoring this aspect observed that no purpose

would be served in calling upon the defendant to produce evidence

and dismiss the suit. Thus, suit is dismissed when the position on

record is that neither parties have led any evidence.

8. We are afraid, in the absence of any evidence led by the defendant,

the suit could not have been dismissed as the onus of proving Issue

Nos. 1 to 5 was upon the defendant. When learned counsel for the

defendant was confronted with this position, he was candid in

admitting this fact and because of this reason his plea was that the

impugned order may be set aside and the case remanded back to the

learned Single Judge. But at the same time he submitted that only

the defendant be allowed to lead the evidence and not the plaintiff.

9. However, once we have to set aside the impugned judgment and

decree and the order recording dismissal of suit and have to remand

the case back for recording the evidence of the defendant, in the

interest of justice, we deem it proper to give one more opportunity

to the plaintiff as well, to lead evidence. We are adopting this course

of action also keeping in view the fact that in the manner in which

the burden to prove different issues was suggested, it would have

been more appropriate for the defendant to lead evidence in the first

instance. Insofar as the plaintiff is concerned, the burden essentially is

on the main dispute related to Issue No.6. However, as already

pointed out above, there would hardly be any evidence required by

the plaintiff on that issue as the payment of Rs.22 lacs given by the

plaintiff to the defendant has been admitted by the defendant in the

written statement. However, since it is the plaintiff who was asked

to lead evidence, which position was accepted by the parties, and the

case was proceeded in this manner, we are not altering that position

by calling upon the defendant to lead his evidence first. Therefore,

we are of the opinion that the procedure which is followed may

continue, but only one opportunity shall be granted to the plaintiff

to bring his entire evidence on the date fixed for this purpose. This

opportunity is also conditional subject to payment of Rs.15,000/- as

costs to the defendant.

10. This appeal is allowed. The impugned judgment and decree is

accordingly set aside. The matter is remanded back to the learned

Single Judge. Parties shall appear before the learned Single Judge on

8th September 2008 when the learned Single Judge will fix the date

for recording of cross-examination of plaintiff‟s witnesses before the

Joint Registrar. It is made clear that on the date so fixed the plaintiff

shall produce his entire evidence which shall be cross-examined by

the defendant‟s counsel on the said date and no opportunity for this

purpose shall be granted to any of the parties.

11. Needless to mention that the observations contained in this order

have no bearing on the merits of this case and the suit shall ultimately

be decided on the basis of evidence produced.

No costs.

(A.K. SIKRI) JUDGE

(MANMOHAN SINGH) JUDGE

August 22, 2008 nsk