Master Builders vs The Government Of United States ...
2010 Latest Caselaw 2461 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 CS(OS) NO.932/1986

                                    Date of Decision : 07.5.2010

MASTER BUILDERS                               ......Plaintiff
                             Through:   Mr.Rakesh         Saini,
                                        Advocate.

                              Versus

THE GOVERNMENT OF UNITED STATES AND ANR.
                                  ...... Defendants
                    Through: Mr.Arun Mohan, Sr.Adv.
                             with    Mr.D.P.Mohanty,
                             Advocate.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.

Whether Reporters of local papers may be allowed to see the judgment? YES

2. To be referred to the Reporter or not ? NO

3. Whether the judgment should be reported in the Digest ? NO

V.K. SHALI, J. (oral)

IA No.626/2010

1. More than 24 years have gone by, still the case is pending

for final adjudication. The question which has arisen for

consideration is whether Ms.Freyan Desai, Advocate of this

Court who was appointed as a Local Commissioner to

inspect the site by this Court vide order dated 31.7.1991

along with one Sh.R.S.Sodhi, an Architect should be

summoned as a Court witness. It may be pertinent here to

mention that Ms.Freyan Desai, Advocate was earlier cited

as a witness by the plaintiff in this case and she had also

filed her affidavit on 16.1.2003 by way of examination in

chief but later on she was not examined as a witness and

consequently the affidavit could not be tendered by her in

evidence.

2. The brief background of the case is that the plaintiff who is

a building contractor filed the present suit for recovery of

Rs.1,18,22,968.35. The allegations were that he had been

engaged by the defendant/Government of United State of

America for the purpose of construction of some flats at 14

& 16, Amrita Shergill Marg, New Delhi. The total

contracted price of the work was Rs.80.63 lacs. The case of

the plaintiff was that he was entitled to more money, while

as the defendant had taken the plea that instead of

Rs.80.63 lacs, the plaintiff had received actually payment of

Rs.1.28 crores and they were further demanding additional

amount of Rs.1.80 crores.

3. The defendant on its part filed two separate suits. One suit

bearing CS(OS) No.2345/90 was for injunction and the

other suit bearing CS(OS) No.932/86 for recovery for a

sum of Rs.1.18 crores on account of various acts of

omission and commission on the part of the present

plaintiff in executing an alleged sub-standard work and

wrongfully withholding of the property of the defendant. All

suits were consolidated vide order dated 26.11.90.

4. Issues were framed on 1997 though the first suit which is

the present suit, was filed in 1986. The plaintiff closed its

evidence on 23.4.2009.

5. Vide order dated 31.7.1991, the Court had appointed an

Architect by the name of one Sh.R.S.Sodhi and Ms.Freyan

Desai, Advocate on the request of the defendant as the

Local Commissioner to inspect the premises and report the

stage of construction. Sh.R.S.Sodhi filed his report and

Ms.Freyan Desai filed her separate report on 04.12.1991.

The necessity of appointing an Architect seem to have

arisen because the possession of the suit property itself

was obtained by the defendant by virtue of an Court order.

6. On 19.7.1991, the defendant filed an application for

inspection of the property on the ground that Mr.R.S.Sodhi,

Architect had not presented the correct picture in his report

after carrying out inspection and therefore, a fresh

inspection should be carried out in terms of the

specifications of the contract by Mr.R.S.Sodhi and an

advocate jointly.

7. Thus vide order dated 31.7.1991, this Court directed

Sh.R.S.Sodhi and Ms.Freyan Desai to carry out fresh

inspection after giving notice to the parties. This

inspection was carried out and thereafter on 13.11.1991,

the Court directed Ms.Freyan Desai to verify the

photographs which was taken by the defendants in the

light of the factual position prevailing at the site. There

were around 250 photographs which were verified by

Ms.Freyan Desai and she appended her signature after

inspection. The plaintiff filed an affidavit by way of

evidence of three witnesses whom he examined during the

course of trial. The plaintiff had chosen to file affidavit of

Ms.Freyan Desai on 16.1.2003 but she was not examined

as a Court witness on the ground that she was not

traceable and as she had shifted her residence to Bombay.

The plaintiff's evidence has been closed on 23.4.2009 and

thereafter 2-3 opportunities were given to the defendant for

filing affidavit by way of evidence which was not availed of

and consequently the defendant was visited with imposition

of cost. It is at this stage that the defendant has filed the

present application under Section 151 CPC for summoning

of Ms.Freyan Desai as a Court witness or in the alternative

prayed that the witnesses of the plaintiff be recalled for the

purpose of further cross examination by the defendant.

8. The reason given by the defendant for summoning

Ms.Freyan Desai as a Court witness is that the plaintiff

during his cross examination was shown certain

photographs which were verified by the Local

Commissioner but he denied these photographs and

expressed his ignorance as to whether they were of the site

in question. It is in this background, the defendant has

urged that Ms.Freyan Desai who has initialed the

photographs after the visit to the site, to be summoned as a

Court witness for proving these photographs.

9. So far as the plaintiff is concerned, it has been considered

that even though Ms.Freyan Desai's affidavit was filed but

it was not necessary for him to examine her as a witness.

It was open to the defendant to examine Ms.Freyan Desai

as the defendant's witnesses rather than as the plaintiff's

witnesses. It was also stated by the plaintiff that this is

only a ploy to delay the disposal of the main matter by the

defendant. It is also contended by the learned counsel for

the plaintiff that the testimony of Ms.Freyan Desai is not at

all relevant and the defendant has to prove his case

otherwise also.

10. I have heard the learned counsel for the plaintiff as well as

Mr.Arun Mohan, learned senior counsel for the defendant.

I have gone through the record.

11. A perusal of the entire record of the order sheet shows that

though the suit was filed in the year 1986 and more than

24 years have elapsed but none of the parties seems to be

interested in expeditious disposal of the matter. After

framing of issues in 1997, repeatedly both the sides filed

applications, as a consequence of which the question of

recording of evidence was side tracked.

12. The plaintiff had filed an affidavit by way of evidence of

number of witnesses including that of Ms.Freyan Desai who

admittedly had been appointed as a Local Commissioner by

the Court and was required to inspect the site as well as

she has signed the photographs as they were taken by the

defendant her testimony becomes important as she is

aware about the ground realities available at the spot. It

is in this context that the plaintiff himself had chosen to file

an affidavit of Ms.Freyan Desai as a witness in the instant

case. It cannot be said by any stretch of imagination that

Ms.Freyan Desai and her testimony is not material to the

case inasmuch as this is a suit for recovery filed by the

plaintiff against the defendant for having executed the work

and yet not having been paid as against which the

defendant has set up a counter claim for damages as well

as the suit for injunction. The testimony of Ms.Freyan

Desai is really relevant for the just decision of the case. It

is surprising that though the plaintiff had chosen to file an

affidavit by evidence of this witness in the year 2003 but

ultimately he has chosen not to examine Ms.Freyan Desai

as a witness.

13. The contention of the learned counsel for the plaintiff is

that Ms.Freyan Desai can be produced as a witness of the

defendant is not correct because the plaintiff has already

chosen to file an affidavit of Ms.Freyan Desai which is on

record. If Ms.Freyan Desai is produced as a witness by the

defendant, he will not have the right to cross examine

which he may like to exercise. This right would have been

available to him in case she was examined by the plaintiff.

If that be so, there cannot be any direction by the Court to

the plaintiff, to necessarily produce Ms.Freyan Desai as

plaintiff's witness, notwithstanding the fact that he has

chosen to file her affidavit.

14. Under these circumstances, I feel the only course open to

the Court is to exercise the power of the Court under Order

16 Rule 14 CPC and to summon Ms.Freyan Desai as a

Court witness.

15. I accordingly, exercise the power under Order 16 Rule 14

CPC and summon Ms.Freyan Desai as a court witness for

the purpose of elucidating the facts in dispute with regard

to the possession which was available on the spot at the

time of her inspection. The entire purpose of Order 16 Rule

14 CPC is to empower the Court to summon any person as

a court witness in case, it is established by preponderance

of probabilities that the testimony of such a witness will

help the court in arriving to the correct decision.

Accordingly, the application of the defendant to that extent

is allowed.

CS(OS) No.932/86

Post the matter before the Joint Registrar on 11.8.2010 for

further recording of evidence of the defendant.

V.K. SHALI, J.

MAY 07, 2010 RN