Delhi High Court

Ajit Nagar vs Kalka Pd Aggarwal on 16 April, 2010

Author: S. Muralidhar

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

7
+              CM (M) No. 1407/2009 & CM APPL 17394/2009


       AJIT NAGAR                                            ..... Petitioner
                                       Through : Mr. Nalin Tripathi, Advocate

                      versus


       KALKA PD AGGARWAL                                     ..... Respondent
                       Through : None.


                               And

9
+              CM (M) No. 1515/2009 & CM APPL 18632/2009


       AJIT NAGAR                                            ..... Petitioner
                                       Through : Mr. Nalin Tripathi, Advocate

                      versus


       KALKA PD AGGARWAL                                     ..... Respondent
                       Through : None.


       CORAM:
       HON'BLE DR. JUSTICE S.MURALIDHAR


       1.      Whether Reporters of local papers may be
               allowed to see the judgment?                          No
       2.      To be referred to the Reporter or not?                Yes
       3.       Whether the judgment should be reported               Yes
               in Digest?

                                    ORDER

% 16.04.2010

1. The challenge in CM (M) No. 1407 of 2009 is to orders dated 1st October

2009, 13th October 2009 and 14th October 2009 passed by the learned

Additional District Judge („ADJ‟) in Suit No. 201 of 2006.

2. In CM (M) No. 1515 of 2009 the Petitioner challenges an order dated 4 th

December 2009 passed by the learned District Judge („DJ‟) dismissing

Transfer Petition No. 163 of 2009 by which the Petitioner had sought

transfer of the aforementioned suit from the court of the learned ADJ who

passed the aforementioned orders to any other Court of competent

jurisdiction.

3. This Court has heard the submissions of Mr. Nalin Tripathi, learned

counsel for the Petitioner at length and has also examined the records.

4. The aforementioned suit was filed on 25th July 2006 by the

Respondent/Plaintiff against the Petitioner/Defendant seeking recovery of

Rs.5 lakhs as damages on account of the alleged publication of a defamatory

letter dated 16th June 2006. Issues were framed on 13th December 2006 and

the Plaintiff‟s evidence was fixed on 23rd January 2007. The Plaintiff closed

his evidence on 11th July 2007. The learned ADJ on that date fixed the

evidence of the Defendant for 13th August 2007.

5. On 13th August 2007 the Defendant sought and was granted adjournment

to 19th September 2007. Again an adjournment was sought and was granted

subject to payment of costs to 30th November 2007. On that date the DW-1

was examined and last opportunity was granted to conclude the Defendant‟s

evidence on 10th January 2008. No witness was summoned by the Defendant

on 10th January 2008. The Court had to adjourn the case thereafter to 14th

February and again thereafter to 28th May 2008. No witness was examined

by the Defendant on 25th August 2008 and again adjournment was granted

subject to payment of costs of Rs.1,000/-.

6. The case was fixed for Defendant‟s evidence thereafter on 11th August

2008, 28th September 2008, 12th November 2008, 18th December 2008, 5th

February 2009, 18th February 2009 and 11th July 2009. During these dates

only three witnesses were examined and yet the Defendant‟s evidence was

not closed. The case was then adjourned to 1st October 2009. The net result

that was in more than two years‟ time the Defendant, despite being granted

several adjournments, was able to examine only four witnesses.

7. For the hearing on 1st October 2009 process fee had been filed only for

one witness. That witness was however not present in the morning of 1st

October 2009. The learned ADJ directed issuance of bailable warrants in the

sum of Rs.2,000/- against the said witness. In response to a query by the

Court, learned counsel for the Defendant stated that if the said witness were

to be examined then there would be no need to examine other witnesses.

However, he was unable to say whether there were other witnesses to be

examined. What happened at that stage it was recorded as follows by the

learned ADJ:

"At this stage, counsel for Defendant shouted loudly without explaining any reason. He is asked to move appropriate application if needs for the same. He shouted that he is not interested to move application. However, case is passed over for 15 minutes for application to be moved by counsel for the Defendant."

8. At 12.12 pm on the same date, the learned ADJ recorded as follows:

"An application is moved for direction under Section 151 CPC. At this stage, witness is appeared before this Court. Witness states that he could not appear in the morning as he is suffering from fever. Be awaited for counsel for the parties."

9. After half an hour at 12.42 pm the following order was recorded:

"One witness Shri Khem Chand from SDM, Defence Colony appeared as summoned witness. Copy of application is supplied to counsel for the Plaintiff. It is stated by Defendant that his counsel is not responding to his mobile call. Since, witness is present and this witness cannot be allowed to go unexamined. Let this case be pass over for 2.00 PM for the examination of the witness."

10. In the afternoon at 2.10 pm the learned ADJ passed the following order:

"It is stated by the Defendant that his counsel is busy in the Hon‟ble Supreme Court in a case. This fact has been first time mentioned by the Defendant since morning. It appears that Defendant is only interested that witness go unexamined. It is directed to the Defendant either he has to examine this witness himself or to call his counsel. It is also observed that witness is a public servant and has appeared before this Court during office hour. Lot of public would have been suffered as the witness is present before this Hon‟ble Court and public work is being suffered.

In the interest of justice, case again is pass over for 3.00 PM for awaiting of counsel for the Defendant."

11. In the proceeding recorded at 3.05 pm the learned ADJ noted that

although process fee was filed for only one witness for that date, in the

application for summoning the witnesses permission was sought for

examining more witnesses. It was, accordingly, concluded that this was a

delaying tactic. Further in the application filed by the Defendant it was

alleged that the Court had some "annoyance with the counsel" and for this

reason the Defendant wanted to engage some other counsel. However, the

learned ADJ noted that "in the court he submits that his counsel will remain

same." While imposing costs of Rs.2,500/- upon the Defendant, the Court

bound down the witness for the next date of hearing and adjourned the case

to 13th October 2009 for cross-examination of the witness and for the

remainder of the Defendant‟s evidence.

12. It appears that after the above order was passed on 1 st October 2009 the

Petitioner filed Transfer Petition No. 163 of 2009 before the DJ seeking

transfer of the case from the court of the learned ADJ. One of the grounds

urged before this Court is that without waiting for the orders to be passed in

the said transfer petition, the learned ADJ proceeded with the aforesaid suit

on 13th October 2009. This Court fails to appreciate the criticism of the

learned ADJ in this regard. He could not have adjourned the case merely

because the said transfer petition was filed and in which no interim order

staying the proceedings in the suit had been passed.

13. On 13th October 2009 while the Defendant remained present, his counsel

was not present. The witness from the office of the SDM, who had been

bound down for that date, was also present. The application filed seeking

adjournment on the ground that a transfer petition had been filed in which

the notice has been issued, was considered by the learned ADJ. It was noted

that the costs imposed by the previous order had not been paid. It was held

that no ground had been made out for adjournment. Further costs of

Rs.2,000/- were imposed on the Defendant. The Defendant declined to

examine the witness who was present. In the circumstances, last and final

opportunity was given to the Defendant to examine the remaining witnesses

including the witness who was bound down for the next date i.e. 14th

October 2009.

14. Mr. Nalin Tripathi, learned counsel for the Petitioner submits that the

above two orders dated 1st and 13th October 2009 show that the learned ADJ

was in a hurry to proceed with the suit. This Court finds that that this

contention is entirely without basis. The detailed proceedings recorded on 1 st

October 2009 and 13th October 2009 show that the learned ADJ exercised a

great deal of restrain it in not passing any order adverse to the

Petitioner/Defendant. There was sufficient ground to have closed the

Defendant‟s evidence even as on 1st October 2009. However, the learned

ADJ did not so. Even on the adjourned date 13th October 2009, which was

almost two weeks thereafter, the learned ADJ decided to grant a final

opportunity to the Defendant.

15. At this stage this Court would like to observe that given the number of

adjournments that had already been granted in the matter, there was no

justification for the learned counsel for the Defendant not being present on

the adjourned date i.e. 13th October 2009. He was aware that on 1st October

2009 despite the witness was present, his examination did not take place

only on account of the absence of the learned counsel for the Defendant.

Therefore, on the adjourned date i.e. 13th October 2009 it was imperative for

the learned counsel for the Defendant to have remained present in the Court

when the matter was called out.

16. The proceedings of 14th October 2009 show that none was present on

behalf of the Defendant. The Defendant himself was not present. Learned

counsel for the Plaintiff was present. The witness from the office of the

SDM was present. At 12.27 pm the learned ADJ recorded as under:

"Case has been called 4 times since morning. Since morning neither Defendant appears nor counsel for the Defendant appears. Cost has also not been paid either to the Plaintiff or to the witness. Witness is from office of SDM, Defence Colony, Delhi who is ready with summoned record for examination."

17. Thereafter, the learned ADJ noted the proceedings that had taken place

on the three previous dates and then recorded as under:

"At this stage, it is objected by counsel for the plaintiff that defence of the Defendant be struck off under Section 35-B CPC. Witness is present before this Court who is Government servant despite of the fact that he has to discharge public functions. He appears repeatedly before this Court as per the directions. Moreover, this witness has also incurred expenditure for appearance before this Court and this Court imposed cost upon the defendant but no cost has been paid to this witness. Thus, in my considered opinion, evidence of this witness is closed and also qua summoned record of this witness, as defendant has failed to examine this witness despite repeated opportunities."

The case was fixed for final arguments on 4th December 2009.

18. On 4th December 2009 the learned DJ by a detailed order dismissed the

Petitioner‟s Transfer Petition No. 163 of 2009. The learned DJ observed in

the impugned order that the records did not substantiate the allegations that

the presiding officer was annoyed with learned counsel for the Defendant or

under the influence of learned counsel for the Plaintiff. It was correctly

observed as under:

"A court mentions about the conduct of a party or a litigant or the counsel in the order sheet, which is just to remind that party/counsel of his duty of the proper behaviour in the court towards the Presiding Officer or towards the opposite counsel/party. That would never mean that a Presiding Officer is prejudiced against a party or a counsel. The observations of the court are for that date and for that particular proceedings. The litigants and the lawyers appearing in the cases are neither friends nor Foe to the Presiding Officer of the Court."

After perusing the comments called for from the learned ADJ, the

learned DJ concluded that the allegations were wholly

unsubstantiated.

19. Learned counsel for the Petitioner/Defendant earnestly pleaded

that one last opportunity should be given to the Defendant, subject to

terms, to conclude the examination of his witnesses on a single date.

He assured that no further adjournment would be sought. He however

submitted that case should be transferred to some other court.

20. This Court does not find the above submissions to be either

acceptable or reasonable. The facts of the case speak themselves. The

conduct of learned counsel for the Defendant/Petitioner as well as the

Defendant himself is unacceptable. It is important that the litigants are