Ashok Kumar Through Lrs. vs Jaipal Gupta
2011 Latest Caselaw 3512 Del

A-2,A-3 & A-4
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 25.07.2011


+CM(M) No.1503/2010,          CM(M) No.1504/2010 & CM(M)
No.1505/2010


ASHOK KUMAR THROUGH LRS.      ...........Petitioner
                Through: Ms.Seema Bengani, Advocate

                  Versus

JAIPAL GUPTA                            ..........Respondent
                        Through:    Nemo


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers 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

INDERMEET KAUR, J. (Oral)

1 There are three suits pending inter se between the parties .

One suit has been filed by the landlord Jaipal Gupta i.e. suit

no.171/07/99 seeking possession, mesne profits and damages qua

the suit property. The suit premises have been depicted in redline

in the site plan and forming a part of shop no.36, Sarojini Nagar

Market, New Delhi which has been filed along with the suit. Two

other suits have been filed by the tenant Ashok Kumar. The first

suit no.553/06/99 seeks perpetual injunction against the

defendant restraining the defendant from dispossessing him from

suit premises. The second suit filed by the tenant is suit

No.552/06/99 seeking a mandatory injunction against the

defendant directing him to remove the gate fixed by him at point X

in the suit property and to remove the lock put by him over the

lock of the plaintiff on the main gate as a result of which the

plaintiff is not able to enjoy the suit premises.

2 In all the three petitions before this Court the aggrieved

party is the tenant.

CM(M) No.1503/2010

3 The first order assailed by the tenant Ashok Kumar is the

order dated 27.9.2010 vide which permission to produce

additional evidence along with documents before the court had

been rejected. The tenant had filed an application seeking

permission to place on record (i) Tehbazari ticket dated

20.10.1987 of the MCD; (ii) letter dated 24.9.1998 of purchasing

goods from Brijwasi Art Press Ltd; (iii) photographs of the gas

cylinder used in the shop; (iv) photographs showing electricity

connection in the shop. Permission had also been sought to place

on record the affidavits of customers who had been visiting shop

of the tenant showing that in fact he was carrying on business

from the said shop. This application had been rejected vide the

impugned order dated 27.9.2010.

4 The documents sought to be placed on record have also

been perused by this Court. On a specific query put to the learned

counsel for the petitioner as to how they would advance the case

of the petitioner that he was a tenant in the suit property and not

a licencee, the learned counsel for the petitioner has in fact no

answer. Admittedly, the plaintiff evidence was closed in this case

on 04.12.2002. It was not even the case of the defendant that the

documents which had been sought to be adduced by him were not

within his knowledge at the time when he filed his written

statement or as to how he has come into possession of these

documents on a later date. Even otherwise perusal of these

documents shows that they do not advance the submission of the

defendant that he is a tenant and not a licencee. The stage for

filing documents was long over; this application had been filed in

the year 2008. No cogent explanation having been furnished for

seeking permission to file documents at such a belated stage, the

impugned order had rightly dismissed the said application. This

order calls for no interference.

CM(M) No.1504/2010

5 The second order impugned before this Court is the order

dated 27.9.2010 vide which the application filed by the tenant

under Section 151 of the Code of Civil Procedure seeking

permission to cross-examine the plaintiff Jaipal Gupta had been

dismissed. Record shows that the matter had been fixed for cross-

examination of Jai Pal Gupta on 04.12.2007. Jaipal Gupta/landlord

was under examination by a local commissioner; examination was

being conducted at the residence of Jaipal Gupta. The contention

of the tenant/Ashok Kumar in his application was that the counsel

Ms.Seema Bengani was busy in the Apex Court and she had

requested through her junior to take an adjournment in the said

matter; her Junior without her instructions conducted the cross-

examination of the witness; this cross-examination was not

sufficient; as such permission has been sought for further cross-

examination of Jaipal Gupta. Affidavit of the counsel Ms.Seema

Bengani has also been filed. This application had been dismissed

by the impugned order.

6 Record shows that Jaipal Gupta had been cross-examined at

length on behalf of the defendant on 04.12.2007; this cross-

examination had been effected by Ms.Bhumika Tandan, Advocate,

on behalf of the defendant. The witness is 88 years of old and that

is why his cross-examination was being conducted at his residence

by the local commissioner. Cross-examination of Jaipal Gupta

stood closed on 04.12.2007. Application seeking his re-

examination was filed on 14.02.2008. Even in this application

there is no averment as to why this application was filed so

belatedly; further what were the questions which remain yet to be

asked from the said witness have also not been mentioned in this

application. This application was rightly dismissed; filling up the

lacuna is no reason to exercise discretion in favour of such an

erring party. Impugned order suffers from no infirmity. It does

not call for any interference. Dismissed.

CM(M) No.1505/2010

7 The third order assailed before this Court is also the order

dated 27.9.2010; the tenant is aggrieved with the order vide

which his application under Order 26 Rule 9 of the Code of Civil

Procedure seeking appointment of a local commissioner had been

dismissed. The application seeking appointment of the local

commissioner had been filed on 18.7.2008. By way of this

application, it has been prayed that a local commissioner be

appointed to carry out inspection of the suit premises and submit

a report about the location, construction and facilities which are

available to the tenant in the premises. This application was

dismissed on the ground that it is for the parties to lead their

evidence in a suit of the present nature; it is not for the court to

collect evidence on behalf of one party. As already noted supra

the plaintiff evidence had been closed on 04.12.2002. This

application had been filed apparently as one more last ditch effort

on the party of the tenant to delay the proceedings as far as

possible. Impugned order dismissing this application calls for no

interference.

8 All the aforenoteed petitions are disposed of in the above

terms.

INDERMEET KAUR, J.

JULY 25, 2011 nandan