Aligarh Roller Flour Mills Pvt. ... vs Shri Parvinder Khanna
2010 Latest Caselaw 3986 Del

*           HIGH COURT OF DELHI : NEW DELHI

            CM (M) No. 1085/2010 & CM Appl. No. 15290/2010 (stay)

%           Judgment reserved on: 26th August, 2010

            Judgment delivered on: 30th August, 2010

         1. Aligarh Roller Flour Mills Pvt. Ltd.
            (A company registered under The Companies Act, 1956)
            12th K.M. Stone towards Delhi,
            G.T. Road, Bidha Nagar,
            Aligarh, U.P.

         2. Ram Pal Juneja,
            Managing Director,
            Aligarh Roller Flour Mills Pvt. Ltd.
            12th K.M. Stone towards Delhi,
            G.T. Road, Bidha Nagar,
            Aligarh, U.P.                              .......Petitioners

                               Through: Mr. Sandeep Garg, Advocate.

                            Versus

            Shri Parvinder Khanna,
            Son of Shri K.L. Khanna,
            Proprietor
            M/s Ess Kay Traders,
            Nai Chupal, Dhaka Village,
            Kingsway Camp,
            Delhi-110 009                              ......Respondent

                               Through: None
CM (M) No. 1085/2010                                           Page 1 of 8
        Coram:
       HON'BLE MR. JUSTICE V.B. GUPTA

      1. Whether the Reporters of local papers may
         be allowed to see the judgment?                  Yes

      2. To be referred to Reporter or not?               Yes

      3. Whether the judgment should be reported
         in the Digest?                                   Yes

V.B.GUPTA, J.

1. This petition under Article 227 of the Constitution of India has been

filed challenging order dated 5th February, 2010 passed by Additional District

Judge, Delhi, vide which application of petitioner under Order 8 Rule 1A

read with Order 18 Rule 17 and Section 151 of Code of Civil Procedure (for

short referred to as „Code‟) was dismissed.

2. In 2003, respondent filed a suit under Order 37 of the Code for

recovery of Rs. 4,19,862.50/- against petitioner. On 22nd February, 2008,

petitioner filed the application in question before trial court when part final

arguments were being heard.

3. It is contended by learned counsel that while searching certain old

documents petitioner could lay hand on certain documents and papers

relating to the present case which would prove his case as mentioned in the

counter claim. These documents are very material and important to prove the

case of petitioner. Moreover, these documents can only be proved by leading

additional evidence and as such these documents ought to have been taken on

record by the trial Court.

4. Present petition has been filed under Article 227 of the Constitution of

India. It is well settled that jurisdiction of this Court under this Article is

limited.

5. In Shamshad Ahmad & Ors. vs. Tilak Raj Bajaj (Deceased) Thru Lrs

& Ors. 152 (2008) DLT 301 (SC), Supreme Court observed;

"Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a Court of Appeal or a Court of Error. It can neither review nor reappreciate, nor re-weigh the evidence upon which determination of a subordinate Court or inferior Tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or

Tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate Courts and inferior Tribunals within the limits of law."

6. In light of principles laid down in the above decision, it is to be seen

as to whether present petition under Article 227 of the Constitution of India

against impugned order is maintainable or not.

7. As already stated above, application seeking production of additional

documents as well as for additional evidence was filed at the stage of final

arguments. The only intention of petitioner is just to delay the trial as

apparent from the findings of the trial Court which read as under:

" As a matter of record the present application has been filed by the defendant at the time of final arguments and the record further reveals that matter was fixed for final arguments on 28.03.07 and part arguments were heard and present application has been filed on 22.02.2008 i.e more or less after the gap of around one year.

The defendant intend to bring on record some bilties of the different transports along with documents pertaining to complaint U/s 138 N.I. Act and some documents that the orders were placed by the defendant.

File perused. Cross examination of DW1 also perused. During cross examination the specific questions

qua the bilty were put to the witness. Even on 26.09.06 further cross examination of DW1 Sh. Raj Pal Juneja was deferred at the request of the witness on the ground that he intend to check the matter pertaining to 138 N.I. Act. Cross examination of DW1 reveals that this witness was having knowledge of the bilties and the documents pertaining to complaint U/s 138 N.I. Act but there is nothing in the written statement that defendant has pleaded about the existence of these documents. The conduct of the defendant reveals that application has been moved by the defendant at this belated stage after thought and in case the application is allowed it may amount to abuse the process of Court. Application stands dismissed with cost of Rs.1000/-."

8. In entire application, it is no where stated as to on which date

petitioners were able to lay hand on the documents which they wanted to

place on record. During course of arguments, learned counsel for petitioner

admitted that written statement was filed in the year 2003, whereas evidence

was completed in 2006.

9. In Madan Lal Vs. ShyamLal, AIR 2002 SC 100, Supreme court observed;

"Documents not produced at the appropriate stage shall not be received by the Court unless good cause is shown."

10. In Vadiraj Nagappa Vernekar (D) Through Lrs. v. Sharad Chand

Prabhakar Gogate JT 2009 (7) SC 202, it was held;

"The power under the provisions of Order 18 Rule 17 CPC is to be sparingly exercised and in appropriate cases and not as a general rule merely on the ground that his recall and re- examination would not cause any prejudice to the parties. That is not the scheme or intention of Order 18 Rule 17 CPC.

It is now well settled that the power to recall any witness under Order 18 Rule 17 CPC can be exercised by the Court either on its own motion or on an application filed by any of the parties to the suit, but as indicated hereinabove, such power is to be invoked not to fill up the lacunae in the evidence of the witness which has already been recorded but to clear any ambiguity that may have arisen during the course of his examination. Of course, if the evidence on re-examination of a witness has a bearing on the ultimate decision of the suit, it is always within the discretion of the Trial Court to permit recall of such a witness for re-examination-in-chief with permission to the defendants to cross-examine the witness thereafter. There is nothing to indicate that such is the situation in the present case. "

11. Suit filed by respondent for recovery of more than Rs. 4 lacs is pending

trial for over seven years and petitioners are creating hurdle in the final

disposal of the suit, as final arguments were heard in part in year 2007.

12. The only purpose of filing of present petition is just to delay the trial.

As apparent from record present petition was filed only on 21st August, 2010

whereas, impugned order was passed on 5th February, 2010, that is, more

than six and half months after passing of the impugned order. This clearly

shows that the intention of petitioners is only to delay the trial.

13. It is well settled that bogus and frivolous applications being filed

deliberately by the litigants in order to delay the trial, should be dealt with

heavy hands. No leniency should be shown to those litigants who in order to

cover up their own inefficiency and negligent act try to cause obstruction in

the administration of justice. Strong message is required to be sent to those

litigants who are in the habit of challenging each and every order of the trial

court even if the same is based on sound reasoning and also to those litigants

who chose to file merit-less applications.

14. Since, there is no infirmity or illegality in the impugned order, the

present petition under Article 227 of the Constitution of India is not

maintainable.

15. The present petition being most bogus and frivolous one, is dismissed

with cost of Rs.40,000/- (Rupees forty thousand only).

16. Petitioner is directed to deposit the cost with Registrar General of this

Court by way of cross cheque, within four weeks from today.

17. List for compliance on 4th October, 2010.

CM Appl. No. 15290/2010 (stay)

18. Dismissed.

30th August, 2010                                         V.B.GUPTA, J.
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