Haryana Properties & Ors. vs Dalmia Cement (Bharat) Limited
2010 Latest Caselaw 3181 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CM (MAIN) No.420/2008

                                         Date of Decision: July 09, 2010

HANSALAYA PROPERTIES & ORS.                 ..... Petitioners
             Through:  Mr. H.L.Tiku, Senior Advocate with
                       Ms. Yashmeet Kaur, Advocate.

                           VERSUS

DALMIA CEMENT (BHARAT) LIMITED              .... Respondent
             Through:  Mr. Ashwini Mata, Senior Advocate
                       with Mr.Jaideep Sarna and
                       Mr.Hemant Budakoti, Advocates.

%     CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

(1)   Whether reporters of local paper may be allowed to see the
      judgment?

(2)   To be referred to the reporter or not?                 Yes

(3)   Whether the judgment should be reported in the Digest? Yes


                           JUDGMENT

ARUNA SURESH, J.

CM (MAIN) No.420/2008

1. Impugned in this petition is the order of the Trial Court

dated 29th March 2008, whereby application of the Petitioners

(defendants) filed under Order 16 of the Code of Civil Procedure

(hereinafter referred to as „CPC‟) was dismissed.

2. Respondent (Plaintiff) had purchased complete 11th and

12th floor having an approximate carpet area of 9850 square feet each

from Petitioner No.1. Dispute inter se the parties arose when Petitioner

No. 1 demanded the balance sale consideration on the complete floor

area while Respondent alleged that sale consideration was agreed to be

paid on the carpet area, which according to the Respondent was 9547

square feet. This resulted into filing of various suits by the Respondent

against the Petitioners, one of them being Suit No.1205/1979 for

damages for delay in delivering the possession as also refund of transfer

charges paid by it to the Petitioners. This suit was initially filed in this

Court but, subsequently it was transferred to the District Court on

account of pecuniary jurisdiction of the District Court having been

exercised and it was renumbered as Suit No.664/2006. Impugned order

has been passed by the Trial Court in this suit.

3. After the pleadings were complete and issues were

framed, matter was listed for evidence of the Respondent.

4. On 24th April 1997, Court recorded that Respondent had

to adduce evidence of Shri S.N. Mittal, Shri V.K.Mathur, Shri

V.P.Gupta and Shri Bhirmiwala in support of his case in affirmative.

Court also recorded presence of S.N.Mittal in the Court on that day and

an adjournment was sought by Mr.Tiwari, counsel for the Respondent

for filing affidavit evidence of the said four witnesses within six weeks

from that date with advance copy to counsel for the Petitioners and

agreed that Petitioners would be at liberty to call all or any of the said

persons for purposes of cross-examination, which suggestion was

accepted by counsel for the Petitioners. Accordingly, the matter was

listed for 25th September, 1997 with a direction to Respondent to file

affidavit evidence within six weeks with advance copy to counsel for

the Petitioners and they were directed to indicate on the next date of

hearing, the name of the persons whom they wanted to be called for

cross-examination to enable to call them for that purpose on subsequent

date. Matter again came up before the Court on 25th September, 1997.

5. On 25th September 1997, Trial Court passed the following

order:-

"Affidavit by way of evidence in pursuance of order dated 24th April, 1997 has been filed on behalf of the plaintiff. Copy has been received by the learned counsel for the defendants who may filed his affidavit by way of evidence within six weeks. List on 19.2.1998 before joint registrar."

6. It seems that affidavit evidence of only one of the

witnesses S.N.Mittal was filed on record. Order is silent if Respondent

had sought time to file affidavit evidence of the remaining three

witnesses. Order is also silent if Petitioners exercised their option to

cross-examine S.N.Mittal, whose affidavit evidence had already been

placed on record. It is also not clear if the Respondent had actually

closed its evidence after filing affidavit evidence of S.N.Mittal.

7. Respondent had filed two applications, one under Order

13 Rule 2 CPC for filing of additional documents and another under

Order 14 Rule 5 CPC for framing of additional issues. Both the

applications were dismissed vide order dated 6 th September, 1999 by the

Trial Court. In appeal, application under Order 13 Rule 2 CPC was

dismissed but, the other application under Order 14 Rule 5 CPC was

allowed and additional issues were framed. In the order dated 6th

September 1999, Court noticing conduct of the Petitioners in not filing

affidavit evidence, as a last and final opportunity granted them four

weeks time to file affidavit evidence observing that in case it was not so

filed, Petitioners‟ evidence would be deemed to be closed. Similar right

was given to the Respondent to cross-examine the witnesses of the

Petitioners, if affidavit evidence was filed.

8. Petitioners did file affidavit evidence as directed but, also

moved an application under order 18 Rule 17 (a) CPC including

permission to recall S.N. Mittal for cross-examination. Trial Court

dismissed the said application on 8th December 1999, observing that as

per the order dated 25th September 1997 since Petitioners did not opt to

cross-examine the witnesses of the Respondent, evidence of the

Respondent stood closed as no opportunity was sought by it to produce

any other affidavit evidence.

9. On 30th November 2000, while allowing the appeal,

following order was passed by the Appellate Court:-

" We have heard the learned counsel for the parties. In the interest of justice, one opportunity is allowed to appellant to cross examine the witness who has filed affidavit

by way of evidence on behalf of plaintiff.

Plaintiff/respondent is directed to produce Shri S.N.Mittal who has filed an affidavit by way of evidence on behalf of Plaintiff for cross-examination in court on a date to be fixed by the Court. The court will also fix dates for production of part (B), (C) and (D) witnesses by the appellant as per list of witnesses filed by it. The witnesses who will be produced in court will naturally be available for cross examination by the Plaintiff. The appellant has filed one affidavit of Shri Bharat Bhushan by way of evidence. Counsel appearing for the appellant undertakes to produce the said deponent for cross examination in court by the counsel for the plaintiff on a date to be fixed by the Court.

With these directions, this matter is posted back before the learned Single Judge for further proceedings. Parties to appear before the Single Judge on 11th December, 2000. The impugned order dated 8th December, 1999 is set aside."

10. On 15th December 2003, counsel for the Respondent made

a statement before the Court that he would file affidavit evidence of

other witnesses with advance copy to counsel for the Petitioners. It

seems that on that day, one bank official was summoned by the

Respondent, who could not be examined because summoned record was

not available with the Bank as the same had been destroyed. Against

this order, Petitioners filed an application under Order 47 Rule 1 CPC

seeking review. Said application was allowed on 3rd March, 2004.

While doing so, the Court observed that Respondent had no further right

to file affidavit evidence and the matter was adjourned only for cross-

examination of Respondent‟s witnesses whose affidavit evidence had

already been placed on record. Cross-examination of S.N.Mittal was

completed on 22nd August, 2007. Vide order dated 3rd March 2004,

while noting that vide order dated 3.3.2004 Respondent was debarred

from filing affidavit evidence of any other witness, on submission of

counsel for the Respondent allowed it to examine two more witnesses

by way of summoning them i.e. officials from Voltas Ltd. and Raori

Associates Ltd. as they were not under his control, it listed the matter

for 30th October, 2007 with directions for taking steps within ten days.

Though there is no clear order if the request was accepted, but the fact

that Court asked the Respondent to produce its remaining evidence and

take necessary steps, clearly indicate that the Court permitted it to

examine officials from Voltas Ltd. and Raori Associates to be

summoned with the assistance of the Court. This was so done in the

presence of counsel for the Petitioners.

11. Respondent subsequently filed an application before the

Trial Court for summoning V.P. Raori from Raori Associates Limited

and official from Voltas Ltd. This application was allowed by the Trial

Court on 5th October, 2007. After coming to know that name of Raori

Associates did not appear in the list of witnesses filed by the

Respondent, Petitioners filed an application under Order XVI CPC

praying for an order or directions that Respondent had no right to

examine any official from M/s Raori Associates, as its name did not find

mention in the list of witnesses. This application was dismissed by the

Trial Court vide impugned order dated 29th March, 2008.

12. Mr. H.L. Tiku, Senior Advocate appearing for the

Petitioners has submitted that once the evidence of the Respondent was

closed and the Petitioners had filed affidavit evidence as per the

directions of the Court, the Trial Court could not have permitted the

Respondent to summon two witnesses, namely, officials from Voltas

Ltd. and Raori Associates Ltd. He has further submitted that official of

Raori Associates is not mentioned in the list of witnesses to be

examined by the Respondent and after closing its evidence, under no

circumstances, the Court could have allowed the examination of Mr.

V.P. Raori who was not under the control of the Respondent to be

summoned and examined as a witness for the Respondent. He has

urged that ignoring the provisions of Order XVI CPC, the Trial Court

dismissed the application of the Petitioners oblivious of the previous

proceedings in the case recorded in various orders and also the fact that

the evidence of the Respondent stood closed vide order dated 8.12.1999.

He has assailed the impugned order dated 29.03.2008, being infirm,

illegal and against provisions of law contained in order XVI CPC.

13. Order XVI (1) and (1A) CPC reads as under:-

"ORDER XVI

SUMMONING AND ATTENDANCE OF

WITNESSES

1. List of witnesses and summons to witnesses.-

(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such person for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.

(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub- rule (2), summonses referred to in this rule may be obtained by the parties on an application to the Court or to such officer as may be appointed by the [Court in this behalf within five days of presenting the list of witnesses under sub-rule (1)].]

1A. Production of witnesses without summons.-

Subject to the provisions of sub-rule (3) of rule 1, and party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents."

14. From bare reading of the provisions of this Order it is

clear that a party is required to present a list of witnesses in the Court

whom it propose to call either to give evidence or to produce documents

through the assistance of the Courts for their attendance in the Court.

For that purpose the party is required to move an application stating the

purpose for which the witnesses are proposed to be summoned. Any

party to the suit is entitled to bring any witness to give evidence or

produce documents without applying for summons under Order XVI

Rule 1 CPC.

15. By virtue of Rule 1 sub-rule (3) CPC, the court can permit

a party to call, whether by summoning through Court or otherwise, any

witness, other than those whose names appear in the list filed by the

party, if the party shows sufficient cause for the omission to mention the

name of such witness in the said list. Provisions of Rule 1A are subject

to the provisions of sub-rule (3) of Rule 1 CPC. In other words, before

proceeding to examine any witness who might have been brought by a

party for that purpose, leave of the Court is necessary, but this by itself

does not mean that Rule 1A is in derogation of sub-rule (3) of Rule 1.

Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and

cater to two different situations.

16. Applicability of Rule 1, sub-rule (3) and Rule 1A under

different situations has been explained in „Mange Ram vs. Brij Mohan

& Ors., AIR 1983 SC 925', it was held:-

9. If the requirements of these provisions are conjointly read and properly analysed, it clearly transpires that the obligation to supply the list as well as the gist of the evidence of each witness whose name is entered in the list has to be carried out in respect of those witnesses for procuring whose attendance the party needs the assistance of the Court. When a summons is issued by the Court for procuring the presence of a witness, it has certain consequences in law. If the summons is served and the person served fails to comply with the same, certain consequences in law ensue as provided in Rule 10 of Order XVI. .............................In view of this legal consequence ensuing from the issuance of a summons by the Court and failure to comply with the same, the scheme of Rules 1, 1A of Order XVI and Rule 22 of the Rules framed by the High Court clearly envisaged filing of a list only in respect of witnesses whom the parties desire to examine and procure presence with the assistance of the Court. There, however, remains an area where if the party to a proceeding does not desire the assistance of the Court for procuring the

presence of a witness, obviously the party can produce such witness on the date of hearing and the Court cannot decline to examine the witness unless the Court proposes to act under the proviso to Sub- section (1) of Section 87 of the '1951 Act' which enables the Court for reasons to be recorded in writing, to refuse to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings. It, therefore, unquestionably transpires that the obligation to supply the list of witnesses within the time prescribed under sub-rule (1) of Rule 1 of Order XVI is in respect of witnesses to procure whose presence the assistance of the Court is necessary. And this ought to be so because the Court wants to be satisfied about the necessity and relevance of the evidence of such witness whose presence will be procured with the assistance of the Court. This not only explains the necessity of setting out the names of witnesses in the list but also the gist of evidence of each witness. If mere omission to mention the name of a witness in the list envisaged by sub-rule (1) of Rule 1 of Order XVI would enable the Court to decline to examine such witness, Rule 1A of Order XVI would not have omitted to mention that only those witnesses kept present could be examined whose names are mentioned in the list envisaged by sub-rule (1) and who can be produced without the assistance of the Court. Viewed

from this angle, Rule 1A becomes wholly redundant. If it is obligatory upon the party to mention the names of all witnesses irrespective of the fact whether some or all of them are to be summoned and even the names of those whom the party desires to produce without the assistance of the Court are also required to be mentioned in the list on the pain that they may not be permitted to be examined, Rule 1A would have given a clear legislative exposition in that behalf and the marginal note of Rule 1A clearly negatives this suggestion. Marginal note of Rule 1A reads as 'Production of witnesses without summons' and the rule proceeds to enable a party to bring any witness to give evidence or to produce documents without applying for summons under Rule 1. If it was implicit in Rule 1A that it only enables the party to examine only those witnesses whose names are mentioned in the list filed under sub-rule (1) of Rule 1 whom the party would produce before the Court without the assistance of the Court, it was not necessary to provide in Rule 1A that the party may bring any witness to give evidence or to produce documents without applying for summons under Rule 1. Rule 1A of Order XVI clearly brings to surface the two situations in which the two rules operate. Where the party wants the assistance of the Court to procure presence of a witness on being summoned through the Court, it is obligatory on the party to file the list with the gist of evidence of witness in the Court as directed by sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. But where the party would be

in a position to produce its witnesses without the assistance of the Court, it can do so under Rule 1A of Order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not.

10. It was, however, contended that Rule 1A is subject to sub-rule (3) of Rule 1 and therefore, the Court must ascertain how far sub-rule (3) would carve out an exception to the enabling provision contained in Rule 1A. There is no inner contradiction between sub- rule (1) of Rule 1 and Rule 1A of Order XVI. sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under Sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations.

11. The analysis of the relevant provisions would clearly bring out the

underlying scheme under Order XVI Rules 1 and 1A, and Rule 22 of the High Court Rules would not derogate from such scheme. The scheme is that after the Court framed issues which gives notice to the parties what facts they have to prove for succeeding in the matter which notice would enable the parties to determine what evidence oral and documentary it would like to lead, the party should file a list of witnesses with the gist of evidence of each witness in the Court within the time prescribed by sub-rule (1). This advance filing of list is necessary because summoning the witnesses by the Court is a time consuming process and to avoid the avoidable delay an obligation is cast on the party to file a list of witnesses whose presence the party desires to procure with the assistance of the Court. But if on the date fixed for recording the evidence in an election petition, the party is able to keep his witnesses present despite the fact that the names of the witnesses are not shown in the list filed under sub-rule (1) of Rule 1, the party would be entitled to examine these witnesses and to produce documents through the witnesses who are called to produce documents under Rule 1A. .................."

17. Mange Ram's case (supra) has been referred to in

„Vidhyadhar vs. Mankikrao & Anr.', JT 1999 (2) SC 183.

18. Thus, it is clear that Order XVI Rule 1 and 1A neither

gives absolute permission nor puts a total prohibition on the party to

produce the witnesses or the production of documents for proof of their

respective case. However, when they seek assistance of the Court, they

are enjoined to give reasons as to why they have not filed the

application within the time prescribed under Rule 1 of Order XVI.

19. In this case an oral request was made by the counsel for

the Respondent to the court that he wanted to examine two witnesses

one from Voltas Ltd. and another from Raori Associates Ltd. Petitioner

is not in issue as regards examination of an official witness from Voltas

Ltd. as its name appears in the list of witnesses filed by the Respondent.

It is noted that counsel for the Respondent had made an unambiguous

statement before the Trial Court that he would not examine any other

witness except the said two witnesses. Grievance of the Petitioner is

that Mr. V.P. Raori has been wrongly allowed by the Court to be

examined as a witness by the Respondent especially when its evidence

was closed and the name of this witness did not find mention in the list

of witnesses and also over a long period Respondent nowhere made a

request to the Court to permit it to examine Mr. V.P. Raori, till after the

cross examination of S.N. Mittal was closed.

20. It is not in dispute that name of V.P.Raori does not find

mention in the list of witnesses. It is also a common case of the parties

that since after 24.4.1997, when the Court permitted the Respondent to

file an affidavit of four witnesses in evidence within a period of six

months till 22.8.2007 Respondent did not make any request nor sought

permission from the Court to examine V.P. Raori as its witness.

21. As discussed above, it is open to a party to produce a

witness to give evidence or produce documents even if the witness is

not listed in the list of witnesses. Mr. V.P. Raori was present in the

Court on 30.10.2007, the date fixed by the Court for examination of

witnesses from Voltas Ltd. and Raori Associate Ltd. Mr. V.P.Raori was

produced by the Petitioner himself and it did not take any assistance of

the Court to summon this witness. No doubt that Respondent did not

formally apply for extension of the date for filing affidavit by way of

evidence, but then, court is not without power to extend such date.

Respondent never made any statement to the Court closing its evidence

after filing of the affidavit of Mr. S.N. Mittal in evidence.

22. The Trial Court did observe that name of Mr. V.P. Raori

did not appear in the list of witnesses till date but noted that the witness

was produced by the Respondent of its own without assistance of the

Court and therefore Respondent was entitled to examine the witness

even though his name was not mentioned in the list of witnesses. True

that, application filed by the Respondent for summoning concerned

official of Raori Associates with the assistance of the Court was

allowed, the fact remains Respondent had produced the witness of its

own without the assistance of the Court on 30.10.2007, the date fixed

for remaining PE. He could not be examined because of the objections

raised by the Petitioner. While dismissing the application, the Trial

Court did direct Respondent to produce V.P. Raori without the

assistance of the Court to examine him as its witness and only permitted

it to summon official witness from Voltas Ltd. with the assistance of the

Court and that too on its own responsibility.

23. The impugned order of the Trial Court therefore is within

the purview of provisions contained in Order XVI CPC. Hence, I find

no illegality or infirmity in the same. Hence, the petition is dismissed.

24. Before parting with the petition, I would like to express

my anguish and concern to the manner in which the parties to the suit

are proceeding with the case. This case is pending since 1979.

S.N.Mittal was cross examined after about ten years of his filing

affidavit in evidence. Petitioner took few dates to complete the cross

examination. Both the parties for one reason or the other have been

prolonging the proceedings in this case after it was fixed for recording

of evidence of the parties. The Trial Court conscious of the delay in

disposal of the case directed the parties to co-operate with the court in

disposing of the matter in a scheduled time and also took it open itself

that with the co-operation of the counsel for parties it would endeavour

to dispose of the case by the end of April, 2008. Even challenge to this

order has taken two years to reach to a final conclusion.

25. Parties under the circumstances are directed to fully

cooperate with the Trial Court in getting the matter finally concluded

and judgment pronounced on merits without any unnecessary delay or

adjournments. The Trial Court shall also make every endeavour to

ensure that the case is finally decided within six months from the date of

the order. Parties shall appear before the Trial Court on 9th August,

2010. The Trial Court shall grant only one last and final opportunity to

the Respondent to produce V.P. Raori and official witnesses from

Voltas Ltd on its own responsibility to examine them as its witnesses,

failing which the Trial Court shall be at liberty to close the evidence of

the Respondent without giving any further opportunity to it.

CM No.4938/2008 (for stay)

26. Since petition has been dismissed, this application has

become infructuous. Hence, the same is accordingly disposed of.

27. An attested copy of this order be sent to the Trial Court

through special messenger for compliance.

ARUNA SURESH (JUDGE) JULY 09, 2010 sb/vk