Delhi High Court
Rakesh Sehgal & Ors vs Meenakashi Gupta on 23 March, 2012
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:23.03.2012
+ CM(M) 1516/2010 & CM Nos.21488-89/2012
RAKESH SEHGAL & ORS ..... Petitioners
Through: Mr.C.P.Vig, Advocate.
versus
MEENAKASHI GUPTA ..... Respondent
Through: Ms.Aruna Mehta & Mr.Sanjeev
Mehta, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1 The impugned order is dated 21.09.2010 which had endorsed the
finding of the trial Judge dated 20.04.2010 whereby the two applications
filed by the tenant had been dismissed. One application was an
application filed under Section 151 of the Code of Civil Procedure
(hereinafter referred to as the 'Code'); that part of the order is not
impugned. The second application is an application under Order XVIII
Rule 17 of the Code; the finding returned on this application has
aggrieved the petitioner.
2 The contention of the petitioner is that his evidence was illegally
closed by the trial Court; he should have been granted an opportunity to
lead his evidence but his application under Order XVIII Rule 17 of the
Code was dismissed summarily.
3 Record shows that the present suit is the eviction proceedings
filed by the landlord against his tenant under Section 14 (1)(e) of the
Delhi Rent Control Act (DRCA). It is not in dispute that in the course of
the evidence, the tenant has examined about ten witnesses. By way of
the application under Order XVIII Rule 17 of the Code, the tenant seeks
to examine one Naresh Kumar Sehgal. Record shows that on
16.07.2007, last opportunity had been granted to the tenant to examine
all his witnesses failing which his evidence would be closed and the
matter had thereafter been fixed for 14.08.2007. On 14.08.2007, after
the examination of the part of the witnesses of the tenant, the evidence
of the tenant stood closed. Matter was fixed for final arguments for
31.10.2007. Thereafter an application was filed by the tenant seeking a
recall of the order vide which his evidence had been closed; this prayer
made by the tenant had been declined and had been dismissed on
28.01.2008; the order of 28.01.2008 as also the earlier order dated
14.08.2007 whereby the evidence of the tenant stood closed have since
attained a finality. Naresh Kumar Sehgal was not present on that date
and as such he was not examined; there was no explanation as to why
the evidence of the tenant should again be reopened with permission to
the tenant to summon Naresh Kumar Sehgal once again; moreover, the
relevancy of the testimony of Naresh Kumar Sehgal even on a specific
query put to the learned counsel for the petitioner is unexplained.
4 Record shows that the evidence of the tenant had in fact stood
already closed on 14.08.2007 and the application seeking a recall of that
order had again been dismissed on 28.01.2008. No explanation could be
furnished by the tenant as to why Naresh Kumar Sehgal had not been
produced on the earlier dates; the impression that the Court gets in such
proceedings is that the tenant is doing his best to delay the proceedings;
since this impression built up could not be repelled by the tenant, the
impugned order declining the prayer made by the petitioner for recall of
his witness in this scenario suffers from an infirmity.
5 Order XVIII Rule 17 of the Code empowers the Court to recall a
witness at any stage; there is a wide and ample power which is vested
with the Court; however this power has to be exercised in the interest of
justice and not allowing one party to fill up the gaps or lacunas which
have been left out by them or for the purpose of delaying the
proceedings.
6 Petition is without any merit. Dismissed.
INDERMEET KAUR, J
MARCH 23, 2012
A
