S. Balbir Singh vs Govt. Of Nct Of Delhi & Ors.
2008 Latest Caselaw 1992 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RFA (OS) No. 70/2007


                                  RESERVED ON :October 22nd , 2008

%                           DATE OF DECISION : November 11th , 2008



S. Balbir Singh                                 .......Appellant
                                  Through:      Mr. S.K. Sharma and
                                                Mr. Dhruv Lumra,
                                                Advocates.
                    Versus


Govt. of NCT of Delhi & Ors.                    ......Respondents
                                  Through:      Ms. Zubeda Begum,
                                                Advocate.


CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not?                                 Yes
3. Whether the judgment should be reported in the digest?                 Yes




                           JUDGMENT

MANMOHAN, J:

1. The present appeal has been filed for setting aside

judgment dated 10th July, 2008 passed by the learned Single

Judge in CS (OS) No. 156/2003 whereby the Appellant/Plaintiff's

suit has been dismissed for non-prosecution on the ground that

inspite of giving repeated opportunities to the Appellant/Plaintiff,

he neither filed any evidence by way of affidavit nor appeared in

Court to tender his evidence. In the present Appeal, there is also

a prayer that the learned Single Judge be directed to grant an

opportunity to the Appellant/Plaintiff to lead his evidence.

2. Briefly stated, the facts of the present case are that the

Appellant/Plaintiff filed a suit being CS (OS) No. 156/2003 for

compensation and recovery of damages to the tune of Rs. 1.5

Crores on account of malicious prosecution of the

Appellant/Plaintiff.

3. On 1st March, 2006 issues were framed and the

Appellant/Plaintiff was directed to file affidavit of witnesses within

eight weeks and the matter was listed before the Joint Registrar

on 2nd May, 2006. On the said date, the Appellant/Plaintiff

neither filed any affidavit by way of evidence nor its list of

witnesses. A further opportunity of four weeks was granted to

the Appellant/Plaintiff to comply with the directions. Even on the

hearing held on 15th September, 2006, neither any affidavit nor

list of witnesses was filed by the Appellant/Plaintiff. As a last

opportunity, further time of four weeks was granted to the

Appellant subject to deposit of costs of Rs. 3,000/- and the

matter was adjourned to 1st December, 2006. However, on the

said date neither the affidavits were filed nor the costs were

deposited. In fact, the learned Counsel for the Appellant/Plaintiff,

once again, sought further time of three months for filing

affidavits on the ground that the Appellant/Plaintiff is an NRI and

he apprehends arrest if he were to visit India. Last opportunity

was given to file the affidavit and the matter was adjourned to

15th March, 2007. On 15th March, 2007 the Appellant/Plaintiff still

failed to file any affidavit by way of evidence, therefore, the Joint

Registrar placed the matter before Court.

4. Learned Single Judge on 10th July, 2007 dismissed the suit

for non-prosecution on the ground that the suit cannot be kept

pending indefinitely and the Appellant/Plaintiff had given no good

reason for not filing affidavits by way of evidence which could

have been affirmed in U.K. where the Appellant/Plaintiff was

residing. The relevant portion of the impugned order is

reproduced hereinbelow :-

"...........sufficient latitude has already been given to the plaintiff to file the affidavits of evidence. It is trite to say that affidavits could have been affirmed in UK, where the plaintiff is stated to be based, and sent to India. The plaintiff cannot keep the suit pending for an indefinite period of time.

Dismissed for non prosecution."

5. Learned Counsel for the Appellant/Plaintiff contended

before us that in 1999, the Respondent Nos. 3 to 7 had

physically and mentally tortured the Appellant/Plaintiff as well as

his relative Mr. Sukhminder Singh and a false case had been

registered against them at Police Station Kashmiri Gate vide FIR

No. 279/1999 under Sections 3, 4 and 5 of the Explosive

Substances Act read with Section 120B IPC. He stated that the

Appellant/Plaintiff had remained in illegal custody from 23-24

June, 1999 till 27th March, 2002 when he was acquitted by the

Court of ASJ in Sessions' Case No. 4/2001. Learned Counsel

contended that the Appellant/Plaintiff had not only filed the above

suit for recovery of damages and malicious prosecution on the

ground that he had been illegally detained and falsely

charged/implicated by the Respondents, but he had also filed a

Criminal Writ Petition bearing No. 507/2003 for a direction to the

State to register a case and get the matter investigated from CBI.

Learned Counsel also pointed out that the Appellant/Plaintiff's

lawyer had written a letter dated 31st January, 2007 to the

Secretary, Ministry of Home Affairs expressing an apprehension

that the Appellant/Plaintiff would be arrested in a false case, the

moment he lands in India. By this notice, the Government was

also directed to inform as to whether the Appellant/Plaintiff can

travel to India freely without any apprehension of arrest.

6. The Respondents have filed an affidavit stating that the

entire record of Respondents' office had been checked and it

was found that no communication was received on behalf of the

Appellant/Plaintiff either seeking police protection or

apprehending arrest. It was further submitted that the

Appellant/Plaintiff was making false allegations without any basis

or reasons only with a view to get his suit restored.

7. After hearing the parties, we are of the view that sufficient

time and opportunity had been given to the Appellant/Plaintiff to

file its evidence by way of affidavit. We are also unable to

understand as to how the alleged apprehension of arrest in India

could have prevented the Appellant/Plaintiff from filing its affidavit

by way of evidence in U.K. The Appellant/Plaintiff's version that

it did not file an affidavit as he could not visit India due to

apprehension that he would be arrested, does not inspire any

confidence.

8. We asked learned Counsel for the Appellant/Plaintiff as to

whether the Appellant/Plaintiff had resorted to any legal

proceedings either to facilitate his return to India and/or to seek

an anticipatory bail. Learned Counsel for the Appellant/Plaintiff

fairly admitted that no such proceedings had been filed. We also

asked the learned Counsel for the Appellant/Plaintiff as to

whether the Appellant/Plaintiff had approached any statutory

authority other than the letter dated 31st January, 2007 written by

the Appellant/Plaintiff's counsel. Again learned Counsel for the

Appellant/Plaintiff candidly admitted that there was no letter

written by the Appellant/Plaintiff either directly to the police or

any other statutory authority or the Indian High Commission

seeking any facility for his return to India.

9. In our view, no suit can be allowed to be dragged on for an

indefinite period as it causes harassment to the parties, specially

the Respondents/Defendants in the present case.

10. Consequently, we are of the view that the order passed by

the learned Single Judge is in accordance with law and does not

call for any interference. The present appeal is dismissed but

with no order as to costs.

MANMOHAN, J

MUKUL MUDGAL, J

NOVEMBER 11th , 2008 rn