Delhi High Court
Narender Kumar Dhiman vs Ms. Kamal Saini on 8 January, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.M. (Main) No.754 of 2009 & C.M. Appl. No.10711 of 2009
% 08.01.2010
NARENDER KUMAR DHIMAN ......Petitioner
Through: Mr. K.L. Bajaj, Advocate.
Versus
MS. KAMAL SAINI ......Respondent
Through: None.
Date of Order: 8th January, 2010
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
JUDGMENT
1. By the present petition under Article 227 of Constitution of India, the petitioner
has assailed the orders dated 12th May, 2009 and 26th May, 2009 whereby the learned trial
court rejected the prayer of the petitioner seeking adjournment on the ground of illness of
counsel for the petitioner.
2. The petitioner had earlier filed a petition being C.M. (Main) No.252 of 2009
challenging order of the trial court dated 4th December, 2008 whereby the plaintiff's
evidence had been closed and the matter was fixed for defendant's evidence. The
defendant had taken a plea that cross-examination of PW-2, Ms. Kamal Saini, was still
continuing and the learned trial court without completion of cross-examination had closed
the petitioner's evidence and defendant was not given opportunity to complete the cross-
examination. This court disposed of the petition vide order dated 20th April, 2009
directing that the defendant be given one opportunity to cross-examine PW-2 on next date
of hearing. Since the plaintiff had expressed an apprehension that the defendant was
trying to delay the suit, this court also directed that the trial court should expeditiously
dispose of the suit preferably within one year from 20th April, 2009. It was specifically
directed that the trial court shall not unnecessarily adjourn the case at the request of either
of the parties. After this, the matter was listed before the trial court on 12th May, 2009.
PW-2, Ms. Kamal Saini, appeared for her cross-examination and on that day, counsel for
the defendant did not appear for cross-examination of this witness. A plea was taken by
the defendant that his counsel was not well and adjournment was sought. The court
observed that the order was passed by the High Court on 20th April, 2009. The next date
fixed in the case after 20th April, 2009 was 29th April, 2009 and thereafter the next
date was 12th May, 2009. No cross-examination was done of this witness PW-2 on either
of the two dates. He could not modify the order of the High Court and therefore, he
closed the evidence.
3. Thereafter, an application was made by the defendant under Section 151 CPC to
recall the order dated 12th May, 2009 which was taken up on 26th May, 2009. Even on
that day, the defendant counsel did not appear and only proxy counsel appeared and
sought adjournment. The proxy counsel was not able to answer any query of the court.
On 12th May, 2009, the court had also directed the defendant to file affidavits of witnesses
to be examined by the defendant. No affidavit of witnesses were filed by the defendant
and only an adjournment was sought and, therefore, the trial court closed the defendant'
evidence and fixed the matter for final arguments.
4. It is argued by counsel for the petitioner that on 20th April, 2009, the trial court
fixed the matter for cross-examination of PW-2 on 29th April, 2009 but the advocates
were on strike on 29th April, 2009 so due to strike, he did not cross-examine the witnesses
and the matter was then fixed for 12th May, 2009. On 12th May, 2009, the counsel could
not come as he had suffered a knee injury on 9th May, 2009 and therefore, sent a request
for adjournment of the case which was rejected. The petitioner then moved an application
for recalling the order. The same was dismissed. The defendant's evidence was also
closed as defendant failed to lead any evidence despite opportunities given. The
petitioner's counsel has relied on medical certificate about his own injury which was not
even filed before the trial court and was placed on record of this court only.
5. This matter was filed by the plaintiff in June, 1998. Thereafter when the matter
came up for evidence, PW-2, Ms. Kamal Saini, was partly cross-examined on 15th April,
2004. The cross-examination of PW-2 was closed on 4th May, 2005. The defendant then
made an application under Order XVIII Rule 17 CPC for allowing him to further cross-
examine the witness. This application was allowed by the trial court subject to cost of
Rs.2,000/- vide order dated 20th September, 2007 observing that the defendant filed
application itself after lapse of one year and six months which shows casual attitude of
the defendant and the defendant did not press the application on number of subsequent
dates due to which there was substantial delay. The trial court, however, allowed the
application for further cross-examination. Thereafter again, adjournment was sought and
the matter was listed for cross-examination of plaintiff's witness on 1st August, 2008. On
that day, the plaintiff made a statement for closing the evidence. The plaintiff's evidence
was closed and defendant was directed to file affidavit of evidence. It is under these
circumstances that this court had allowed the earlier miscellaneous petition and given one
last opportunity to the defendant for cross-examination of plaintiff witness.
6. The defendant and his counsel were supposed to be diligent. The strike of
advocates is no ground for non-appearance of counsel in the court and refusal to cross-
examine the witness. The Supreme Court time and again had ruled that an advocate
cannot run away from his obligations on the ground of strike and if he does not want to
appear for his client due to strike, he should return the brief to the litigant. In the present
case, the defendant's counsel, despite knowing that the High Court had given only one
opportunity to him, did not conduct cross-examination of the witness on the ground of
strike and on next date of hearing, he did not conduct cross-examination on the fake
ground of his illness. The medical certificate which has been shown by defendant's
counsel in this court is of 16th May, 2009 and it shows that he visited a private doctor only
on 16th May, 2009 to say that he received injury on knee on 9th May, 2009. This clearly
shows that the medical certificate was subsequently procured to meet the plea of illness
on 12th May, 2009. I consider that the trial court did right thing in not acceding to
request of adjournment on the sham ground of illness of the advocate. If the advocate had
received knee injury on 9th May, 2009, then he would have visited the doctor for
treatment on 9th May, 2009 and he would not have visited doctor for the first time on
16th May, 2009.
7. I also consider that once the trial court had ordered the defendant for filing
defendant's evidence, the defendant was supposed to file affidavit of his witnesses. By
making an application under Section 151 CPC, no party gets a right to overcome the order
of the court. If the case is fixed for executing certain business on a date, that business has
to be executed irrespective of interlocutory applications being made by the party. A plea
cannot be taken that since an application under Section 151 CPC was made, the defendant
was not supposed to file affidavit in evidence. It was made clear to the parties vide order
dated 20th April, 2009 in C.M. (M) No.252 of 2009 that the trial court shall not give
unnecessary adjournments to either of the parties and this should have been understood
by the parties. The cases cannot be allowed to drag perpetually. This case was filed in
the year 1998 and in the year 2009, that is, after about eleven years, the case was still at
the stage of PW-2's cross-examination. This court keeping this in mind had given clear
directions that the case must be brought to an end expeditiously and this was required to
be followed by the trial court.
8. I find no force in the petition and the petition is hereby dismissed.
SHIV NARAYAN DHINGRA J.
JANUARY 08, 2010
'AA'
